KF ui ((ortif U IGam i^rljool IGibtatjj KF 1315.uT"'"""'*'*"^'-"'"T Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019222037 COMMENTARIES ON THE LAW OF MASTER AID SERVANT BY O. B. LABATT, B. A. (cantab.) OF THE Bak of San Francisco, Cal. 3In tCStte Polumt0 VOLS. I. AND II.— employer's LIABILITY. VOL. III. — KKLATION, HIBING and DISCHARGB, compensation, STIUICES, ETC. YOL I. EOCHESTEH, NEW YonK, •i'Hfi LAWYERS' CO-OPERATIVE PUBLISIltN*^ 00. 1904 ■ Entered according to Act of Congress, in the Year nineteen hundred four, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, at Washington, D. C. K. K. ANDBEWS Peintiwq Compani, Rochester, N. Y, TO SEYMOUR D. THOMPSON, LL. D., formerly a member of the st. louis court of appeals This Treatise is Dedicated, AS A slight token OF THE ADMIRATION WHICH THE AUTHOR FEELS FOR THE DISTINGUISHED SERVICES WHICH HE HAS RENDERED TO THE LEGAL PROFESSION, BOTH IN HIS JUDICIAL AND LITERARY CAPACITY, PREFACE. The two volumes here offered to the profession deal with the nature iuid extent of a servant's right to maintain an action against his mas- ter for personal injuries, and form the first part of a treatise which, when finished, will be a complete commentary upon the law of mas- Icr and servant. It has been the author's aim to cite every decision ^vhich has been rendered by a court of review in any of the comitries in which the common law is the prevailing system of jurisprudence, &nd the materials collected represent the result of an exhaustive ex- i^mination of all the reports, whether official, semiofficial, or nonoffi- cial, which have been published in the following countries : Eng- land, Scotland, Ireland, the United States, Canada, Australia, and Xe-w Zealand. A brief summary of the law of employers' liability under the systems which are founded upon the civil law has also been added. The date of each case is always specified. The insertion of thi-^ detail has appreciably augmented both the cost and the bulk of the vol- umes; but its utility will be readily conceded by every lawyer who has learned to realize the fluctuating and unstable condition of the law of employers' liability, and the vital importance of gauging the significance and weight of each ruling with reference to tbe precise period of doctrinal evolution by which it was produced. To prevent any risk of a misunderstanding, it is proper to mention that, as a general rule, no cases are cited which are of a later date til an those collected in the volumes of the General and American Di- gests which were published in the s]iring of 1902. The manifest ad- ^■antage of this arrangement is that it fixes a definite starting point for such researches as it may be desired to make in the later volumes of those digests or elsewhere, and obviates the want of homogeneity which would have resulted from imdertaking to utilize all the most recent cases in a treatise which has necessarily required a consider- able time to put through the press. The chapter relating to the Eng- lish Workmen's Compensation Act of 1897 constitutes the one im- portant exception to the scheme thus adopted. The unique and novel vi PREFACE. character of that remarkable statute, aud the extraordinary amount of litigation which it has engendered during the few years of its ex- istence, have been deemed to furnish a sufficient justification for stat- ing the effect of all the decisions relating to it which have been re- ported up to the end of 1902. The supplementary citations of reports other than those which be- long to the ofiicial or semiofficial class are, it is considered, sufficiently useful to compensate for the outlay and consumption of space which their insertion has entailed. Wherever the only citation given is that of a nonofficial series, the case is not found except in a report of that description. The elaborate index which is appended to this portion of the trea- tise has been compiled by Mr. Cyrus W. Phillips, one of the associate editors of the Lawyers' Reports Annotated. To some readers these volumes mil, perhaps, appear inordinately prolix. It may be advisable, therefore, to take this opportunity of explaining that the great length to which they have been extended is due to the impossibility of discussing adequately within a narrow compass the enormous mass of authorities bearing upon a subject which may, Avithout any exaggeration, be said to enjoy the unenviable distinction of having been the occasion of a larger number of conflict- ing doctrines and inconsistent decisions than any other branch of law. In order to show with something like reasonable clearness and preci- sion the conclusions at which the various courts have arrived, the author has found himself constrained to enter upon a far more minute and detailed analysis of the cases than is customarily undertalten in a commentary of this general character. Without such an analysis the development of the law even in a single state cannot be satisfactorily elucidated; and the necessity for an unusually microscopic examina- tion of the authorities is rendered still more imperative by the fact that, as regards many of the more important of the principles dis- cussed, the evolution of doctrines has proceeded in each jurisdiction upon lines which are, in some degree, at least, indejjendent. Undei' these circumstances, it is clear that the subject cannot be handled with any thoroughness except by adopting a method of treatment which will enable the reader to understand not only the mutations and an- tagonisms of theory which are frequently apparent in the decisions rendered in the same state, but also the manifold points with respect to which the courts of the various countries hold discordant views. The most striking illustration of the difficulties which are entailed by the necessity of considering territorial lines is undoubtedly that which PREFACE. vii is furnisKcd by tlie clui inters relating to common employment; but many other examples of the confusion, obscurity, and imcertainty which are traceable to the same source may readily be found in these volumes. If the anxiety of the author to produce a reasonably clear account both of the past and present condition of the law has some- times occasioned what may seem an excessive diffviseness, he hopes that lawyers who consult these volumes will not be inclined to criti- cise very severely an error of judgment which must, at all events, in- ure to their advantage. It will scarcely be disputed by anyone who is familiar with the law of employers' liability that the deplorably chaotic condition to which it has been reduced in the United States is due to a cause which is probably more potent for mischief in actions to recover damages for injuries received by sen^ants than in any other class of cases involving the existence or nonexistence of negligence, — viz., the diiferences of opinion which prevail with respect to the limits of the power of a court to override the verdicts of juries. In some of the states so large a measure of authority in this regard has been aiTogated to themselves by appellate judges that the actual, as distinguished from the theoretical, system of procedure may fairly be described as being virtually one which compels a plaintiff to establish his case to the sat- isfaction, not of one jury, but of two. ]^o arguments are needed to demonstrate that such a condition of affairs, instead of tending to produce that stability of doctrine which Blackstone and other writers have eulogized as being one of the most beneficial results of the de- limitation of the provinces of courts and juries, is certain to beget an infinitude of uncertainties and inconsistencies. In those cases — and ihey are by no means few — where a finding of facts or an inference from facts is rejected by a divided bench, the situation approaches perilously close to the ridiculous. It might be supposed that consid- erations of courtesy, if not of logic, should be sufficient to dissuade a portion of the members of a court from pronouncing a judgment which, under such circumstances, amounts essentially to a formal dec- laration that their dissenting brethren have, by accepting the conclu- sions of the jury, forfeited ad hanc vicem the right to be classed in the category of those typically reasonable and fair-minded men who are assumed, for the purjjoses of the decision, to be incapable of ren- dering such a verdict as the one in question. A preface is not an appropriate place for the discussion of the im- portant topic here touched upon. But it is not amiss to point out that, so far as the law of employers' liability is concerned, a large por- viii PREFACE. tion of the opportunities for the pei*petration of this abuse of judicial functions would be eliminated if the doctrine which, on the ground either of an implied assumption of the risk or of contributory negli- gence, precludes a servant, as a matter of law, from obtaining dam- ages for an injury resulting from an abnormal risk of which he had knowledge, actual or constructive, before the accident occurred, were abolished by statute. That there is no class of cases in which courts of review have exercised such extensive powers, as regards the over- i-iding of verdicts, as in those which turn on the question whether the servant appreciated, or should have appreciated, the given hazard, will be abundantly apparent to any one who collates, with reference to the facts involved, the cases which are collected in chapter xxi. It seems not unreasonable to suppose that, if the question whether the ser\'ant was chargeable with notice of the danger from which his in- j ury resulted were no more than one of the elements of an investiga- tion leading up to a mere issue of fact, the courts would not be tempted to scrutinize so minutely as at present the findings of juries with regard to such notice. It is obvious that, if this should be the result of the change in the law which is suggested above, one prolific source of disagreement would be to a large extent removed. The consideration just ad^'erted to is, however, not the only one which points to the expediency of abrogating the doctrine in question. Wliether that doctrine is or is not sustainable on grounds of abstract logic, there would seem to be no escape from the conclusion that, un- der existing industrial conditions, it cannot be applied in employers' liability cases without frequently producing consequences which are intolerably harsh and severe. The author ventures to hope that the publication of these volumes which, by the simple process of showing in detail the circumstances under which it has prevented the recovery of compensation, have brought into clear relief its inherent unfair- ness, may induce a larger number of legislatures to follow the lead of those which have already enacted remedial legislation upon the subject. ^Vnother doctrine which the author considers to be thoroughly in- equitable in its essence is that which jn'ccludes a servant from recov- ering damages from his employer in cases where the inju.ry was caused by the negligence of a coservant. It is little short of marvel - ous that a rule of law which rests upon such imsubstantial fouuda- lions (see §§ 4'72— 1-75), and which presses so hardly upon the classes which form the most numerous section of every community, shoirld ])uve survived up to the present time, But, as it has already been t'REFACE. ix abollslied In one state, and its domain has been greatly circumscribed in many others, there would seem to be good ground for anticipating that the day is not very far distant when it will be excised entirely from Anglo-American jurisprudence, — the only modern system, it should be observed, of which it has ever formed a permanent part. See chapter xlvii. It may readily be conceded that, even if carried out, the reforms here outlined would still leave in the law of employers' liability nu- merous defects which it would be desirable to remedy. But the changes proposed would, at all events, remove its most repulsive ex- crescences ; and it would be an immense gain if the courts were re- lieved once for all from the necessity of considering two doctrines which are not only unduly favorable to the employer, but have also engendered such ah enormous mass of subtle and refined distinctions — often as unreasonable and paltry as those which have made medi- eval scholasticism a by-word — that they are no longer fitted to be a part of a practical science which is concerned with the elementary af- fairs of every-day life. KocHESTEB^ Januar}', 1 904. CONTENTS. VOLUMES I. AND II. (FOR CONTENTS OP VOLUME III. SEE THAT VOLUME.) CHAPTER I. GENERAL PRINCIPLES BY WHICH THE EXTENT OF THE MASTER'S LIABIIJTY IS DETERMINED. 1. Introductory statement 1 A. :m aster's liability determined with reference to the risks which are AND ARE NOT ASSUMED BY THE SEUV.\NT 4 2. Risks resulting from the master's negligence are not assumed bj' the servant i 3. Risks not resulting from the master's negligence are assumed by the servant 5 4. Rationale of these two complementary principles 6 5. Injuries due to known risks not generally actionable, even when tliey result from the master's negligence B. Analysis of the master's duties ' 7 6. General statement 7 7. Duty to see that the inorganic instrun\entalities are suitable, both as respects quality and quantity 8 8. Duty to see that the organic instrumentalities are fitted for their functions and adequate in number : 10 a. Servants 10 6. Animals II 9. Duty to see that the instrumentalities are so used that the seivants will not be exposed to unnecessary dangers 11 C. Limits of the master's duty to protect the servant 12 10. Master liable for his personal negligence, of whatever kind it may be 12 11. Master who does not exercise personal supervision, not liable for the manner in which the details of the work are carried out 14 12. Master not liable for injuries caused by abnormal conditions of which he has no notice, actual or constructive 15 13. Extent of a master's duty to protect a servant against casualities not due to his negligence 15 xi ^" OONtJENtS. CTIAPTEK II. VVILVT DEGREE OF CARE A JUSTER IS BOUND TO EXERCISE FOR THE PROTECTJON OP HIS SERVANT. A. Gen'kkally 18 14. Master bound to exercise as much care as a prudent man would exercise under the circumstances 18 15. Master not bound to exercise more care tlian a prudent man 28 10. Care exercised is to be proportioned to the dangers to which the servant is exposed 25 a. Rule applied to the disadvantage of the master 20 6. Rule applied to the advantage of the master 31 Ifia. Master's violation of, or compliance with, a rule made hv himM'lf ; implication from 31 10b. Right to rely upon the recommendations and advice of oi ln-is. . . . 33 17. Comparison between the degrees of care owed to a servant and to a stranger 33 H. Standard of due caee; how fak qualifikd by i'he minority of the SERVANT 3.5 18. Negligence not inferable from tlio mere employment of a minor to do dangerous work 3.') 19. Greater care must be exercised for the protection of young servants 3U 20. Limits of this obligation :>!) 21. Employment of minor without his father s consent; ellect of 40 CHAPTEE III. WHAT KIND OF INSTRUMENTALITIES A MASTER IS BOUND TO FUR- NISH. GENERAL PRINCIPLES. 22. Total failure to furnish necessary instrumentalities or materials; negligence inferable from 43 22a. Instrumentalities actually furnished mvist be reasonably safe.... 44 23. Other forms in which the extent of the master's obligation is e.\- pressed 48 24. blaster not bound to insure his servant's safety 50 25. Instructions must be in conformity with this principle 53 20. Masters obligations limited by the uses for which the instrumental- ities were designed 5S 27. Rationale of this limitation 64 28. Diversion to new uses by the master liimself, or with his consent. . 64 29. Servants engaged in construction, alteration, or repair of instru- mentalities; standard of safety lower as regards 06 CHAPTER IV. OBLIGATIONS OF A BLASTER, CONSIDERED WITH REFERENCE TO THE DUTY OF SERVANTS AND THIRD PERSONS TO USE REASONABLE CARE. 30. Generally 71 dONl'EN'fS. iiii 30a. Master entitled to rely on the presumption that due Care will be exercised by each servant to avoid injuring himself 73 a. Generally 73 6. Dangerous structure above or beside railway tracks 76 30b. — and by each servant to avoid injuring his fellow servants 79 31. Negligence inferable where instrumentalities furnished cannot be safely used by servants exercising ordinary care 80 32. Master entitled to rely on the assumption that due care will be used by strangers with whom he requires his servant to work. . . 81 CHAPTEK V. OBLIGATORY QUALITY OF INSTKU]MENTALITIES, CONSIDERED WITH REFERENCE TO THE RIGHT OF A jVLiSTER TO CARRY ON HIS BCTSINESS IN HIS OWN WAY. .34. Generally S3 35. Master is not bound to adopt any particular instrumentalities or methods 84 a. Rule stated and illustrated 84 6. Instructions required by the rule 89 c. Immaterial that the instrumentality adopted requires greater care in handling 90 36. Rationale of this principle 91 a. An application of the doctrine of assumption of risks 91 6. Rendered necessary by the jury sy,stem of trials 94 0. Master not an insurer of the servant's safety 97 37. Feasibility of the changes suggested; evidential significances of . . . 98 38. Negligence not inferable from the use of dissimilar appliances for the same purpose 90 39. Master's duty to introduce new appliances 100 40. Genera] doctrine not a protection where the instvumentalities are of a pattern that is not reasonably safe 104 41. — nor where they are specifically defective 104 42. — nor where the risks incident to using them were not fully imder- stood by the injured person 107 CHAPTER VI. COMMON USAGE AS A TEST OF THE PERFORMANCE OF EMPLOYER'S DUTIES. 43. Competency of evidence of usage; generally 109 44. Doctrine that a master who adopts instrumentalities in common use is, as matter of law, free from negligence 110 45. Applicability of the doctrine where the negligence charged has re- lation to the employment of servants 117 45a. — or to the methods of work 118 46. Doctrine is applicable only to instrumentalities in good repair. ... 119 47. Doctrine not applicable where the negligence charged is the breach of a statute 120 XIV CONTENTS. 48. Relation of the doctrine to that which allows a master to carry on his business in his own way 120 49. Negligence not inferable simply from the fact that the instru- mentality or method adopted was one not in common use 122 50. Doctrine that conformity to common usage is not conclusive in the master's favor I--' 51. Negligence not predicable of the failure to adopt instrumentalities or methods not in general use 128 52. Proof of nonconformity to common usage warrants inference of negligence 131 53. What kind of usage is competent as evidence to be introduced on the question of due care 134 a. Competency considered with reference to the similarity of the circumstances 134 6. The number of employers following or not following the usage 134 c. The territorial extent of the usage 13f> d. The practice of the defendant himself 136 OHAPTEE VII. THEORY THAT THE SERVANT'S KNOWLEDGE OR IGNORANCE OF THE RISKS INVOLVED IN THE EMPLCi'.MENT DETERMINES THE KXIST- ENCE OR ABSENCE OF CULPABILITY ON THE MASTER'S PART. A. Theory stated and exemplified 138 54. General principles 138 55. No negligence predicable where servant appreciates the risks to which he is exposed 139 56. B,ationale of the doctrine 143 57. Abnormal as well as normal risks deemed to be within the scope of this doctrine 146 58. Negligence predicable, where servant is exposed to risks of which he is actually and excusably ignorant 149 59. Such a. situation sometimes treated as a species of deception 151 60. Master no longer liable after he has given the servant notice of the existence of a risk previously unknown to the latter 154 B. Theory discussed and criticised 155 61. Extent of the immunity which the master secures by the theory. . 155 62. Ultimate basis of theory is rather economic than juristic 156 63. Suggested exception in cases of a temporary forgetfulness of a known danger 158 64. Theory inconsistent with a true conception of public policy 159 65. Servant not really a voluntary agent 164 66. Alternative theory suggested as being the correct one 160 CHAPTEK VIII. LIABILITY OP EMPLOYERS FOR INJURIES CAUSED BY VARIOUS IN- STRUTiIENTALITIES. 66a. Introductory t!oMi;1s'ts. XV A. Injuries caused by conditions of a nobmai, ob permanent character 170 67. Railway tracks ; generally 170 68 Conditions of the permanent way which affect the safe operation of trains 171 a. Location of tracks 171 6. Bridges 172 c. Channels for the discharge of surplus water 17- d. Switches and sidings 173 69. Track considered as a footway for servants 174 a. Location 174 6. Roadbed and ties considered as a footway 175 0. Frogs and guard rails 178 d. Side tracks and yards 181 70. Objects alongside and dangerously near the track 182 a. Conditions held to import negligence 182 6. Conditions held not to import negligence 185 t;. Convenience or necessity as justifying elements 187 d. Employer's liability as affected by the probability of the ac- cident which actually occurred 188 71. Objects dangerous to employees on the tops of cars 189 a. Conditions held to import negligence 189 6. Conditions held not to import negligence 192 c. Convenience or necessity as justifying elements 193 72. Want of fencing of railway tracks 193 73. Coupling appliances of railway cars and locomotives 194 74. Other parts or appurtenances of railway cars and locomotives. . 199 75. Elevators 202 76. Unguarded machinery; generally 204 a. Conditions not reasonably safe 204 6. Liability tested by the servant's Icnowledge or ignorance of the conditions 205 c. Liability negatived on the ground that a master may carry on his business in his own way 207 d. Conformity or nonconformity to usage 207 e. The probability or improbability of injury resulting from the machinery in question 208 77. Revolving shafts 209 78. Employers liability for injuries caused by various other mechani- cal appliances 211 79. Structures 213 SO. Unguarded openings in floors, open hatchways, etc : . , . 214 81. Substances generating explosive gases 216 82. Substances giving off poisonous fumes 217 83. Appliances for giving servants warning of danger 217 B. Injuries caused by conditions of an abnormal, transitory, or spo- radic character 218 84. Conditions of railway tracks and appurtenances by which the safe operation of trains is affected 21S 85. Track consider-d as a footway for servants 220 a. Track and roadbed itself 220 6, Casual obstructions on or near the track 221 5tvi CONTENTS. 80. Objects dangerous to employees in moving trains ot cars 222 a. On the track 222 6. Alongside the track 222 c. Above the track '2L.i 87. Railway fences 22.! SM. Rolling stock on railways 224 •SO. Vehicles other than those used on railways 220 DO. Appliances designed to support or lift heavy objects 220 !)1. Elevators 227 92. Vessels subjected to the pressure of. slc.nm 227 93. Miscellaneous appliances 22S 94. Imperfect attachment of parts of apparatus 228 95. Abnormal movements of machinery 229 90. Changes in the parts of machines 229 117. Structures 230 98. Injuries caused by falling rocks, earth slide.",, etc 231 99. — by other heavy substances 232 100. Unguarded openings 234 100a. Surface of paths, floors, etc 235 101. Conditions exposing a servant to risk of injury from fire 230 102. — from currents of electricity 230 103. — from explosions 236 104. — from dangerous fluids 237 105. Defective lighting 238 100. Unseaworthy ships 238 107. Inadequate ventilation 239 108. Inadequate protection against severe cold 239 CHAPTER IX. MASTER'S OBLiaATIOXS AS TO THE CONDITION OF HIS INSTRUMEX- TADTTIES ARE CONTINUOUS. 110. Generally 240 111. Duty to abandon the use of an abnormally dangerous instrumen- tality . . 243 112. Duty to remedy defects in abnormally dangerous instrumentali- ties which are not disused 244 113. Duty to change the positions of dangerous substancv.s 24S 114. Duty to abstain from ordering servants to Avork in positions where the abnormal conditions will endanger them 249 115. Duty to furnish appliances wliich will render the abnormal con- ditions less dangerous 249 116. Liability of the master after the remedy has been applied ii,")i) 117. Duty to warn the servant as to the existence of abnormal dangers 250 118. Duty to alter improper methods 253 CONTENTS. xvii CHAPTER X. KNOWLEDGE AS AX ELEIJEXT OF A MASTER'S LIABILITY. A. Gekeral principles 255 119. Analysis of the conception of negligence with reference to the knowledge of the person charged therewith 'io.) 120. Same subject in its special application to the liability of a master 257 121. . — to other relations involving analagous responsibilities 258 122. Actual knowledge; liability inferred from 259 123. Absence of actual notice not always decisive in the master's favor 202 124. Constructive knowledge; how related to the master's absolute duties. 263 125. Constructive knowledge; liability infei'red from 2(15 120. Absence of constructive knowledge; liability negatived by 268 127. Relation of this doctrine to tliat wbicli declares the master not to be an insurer 27.! 128. Doctrine considered witli reference to the burden of proof 274 129. Abnormal conditions originally created by causes for which the master is not responsible; application of foregoing principles to 275 I!. ClKCUMSTANCES BEAEINQ rPO.T THE CJITESTIOX WHETHER NOTICE OE THE CON- DITIONS SHOULD BE IMPUTED TO A MASTER 277 129a. Character of danger as being a normal incident of tlie business. . 277 1.".0. Notoriety of defect 278 131. Obvious nature of defect 279 132. Length of time during which defect has existed 279 133. Repairs and alterations ; inference from 283 13-1. Failure of servant himself to observe the dangerous conditions.. 2S4 135. Manner in which instrumentalities discharged their functions prior to the accident; inferences from, generally 287 136. Previous satisfactory operation of the instrumentality wbicli caused the injury 288 137. Previous unsatisfactory operation of the instrumentality which caused the injury 289 138. Previous unsatisfactory operation of other instrumentalities of the same kind 293 139. Province of court and jur3", where the master's constructive knowl- edge is in question 293 C. What degree of foresight is ijiputeu to a mastei: 295 140. General principles 295 141. Liability imputed because accident should have been anticipated. Operation of natural laws 297 142. Liability denied because accident could not have been anticipated 303 143. Master not bound to anticipate inliiction of injuries by simple in- strumentalities 305 144. Master not bound to anticipate accidents resulting from the un- usual mental or physical defects of employees 305 145. Exceptional character of accident, how far an element negativing ix. duty to anticipate it 305 146. No similar accident previously produced by same conditions 308 M. & S. ii xviii CONTENTS. 146a. Unexpectedly severe strain put upon appliances 309 147. Unexpected position of the servant at the time of the accident. . . . 309 147a. Servant's attention diverted by felloe- servant 310 D. WtIOSE knowledge of abnormal CONUITIOXS IS IJIPUTED TO THE lIASTliR 310 148. Introductory 310 149. Knowledge of a mere eo.servant not imputed to tlic master 311 l.'iO. Knowledge of vice principal imputed to master 31- a. Superintendents and managers 314 6. Superior servants, of lower grade than superintendents 314 c. Servants furnishing or maintaining inorganic instrumen- talities 316 d. Servants having power to hire and discharge other servants . . 317 e. Servants whose duty is restricted to reporting defects 318 CHAPTER XI. DUTY OF INSPECTION'. lol. Introductory 320 .\. Duty at the time wiiiUiX the j.\,stuumeiN'j ai.ities ake fikst ukouoht IXTO USE 321 l.'vi. Rule Avhere the employer is liimself the inanufaeturer of the in- strumentality . . 321 153. Rule whore the employer ii5 a purchaser of the instrumentality. . . . .^23 B. Duty of ixspectiox while the instrujientalitie.s aee in use 328 1 .')4. Generally 328 1.55. Evidential prerequLsites to the nuiiiileiuuicc of an action based on the failure to inspect 332 15C. Xo negligence imputable where a defect is not discoverable by a reasonably careful in.spection 333 l.')7. Culpability usually inferable where the master has made no in- spection of an instrumentality- 337 l.'iS. With what frequencj' inspections should be made 338 159. Specific circumstances putting an employer upon inquiry as to the condition of instrumentalities 34o a. E.xternal appearance of instrumentality 343 6. Unsatisfactory operation of instrumentalities pi ioi- to the accident 344 c. Length of time an instrumentality has been in us( 344 d. Operation of physical laws 340 e. Accidents .subjecting; instrumentalities ro extraordinary strains . 347 f. Inexperience of euiployees who erected an appliance 347 100. Sutliciency of the inspection; generally 348 101. Nature of the inspection required 349 102. Limits of the master's duty in regard to iuspeuliuii 353 in;!. Common usage as a test of the adequacy of an inspection 354 104. Duty of inspection with regard to conditions arising from the progress of the work 357 CONTENTS. xix 165. Inspection by parties other than the proprietor himself, effect of 358 a. Public officials 358 6. Manufacturer 359 CHAPTEK XII. EMPLOYER'S LIABILITY CONSIDERED WITH REFERENCE TO THE OWN- ERSHIP OF THE INSTRUMENTALITY WHICH CAUSED THE INJURY. IG6. Instrumentalities both owned and controlled by the defendant at time of the accident 360 167. Instrumentalities which belong to a third person and become active for mischief, owing to the negligence of his employees 361 168. Instrumentalities not belonging to the employer, and used by his servants without his authority 302 169. Instrumentalities neither owned nor controlled by the defendant, but used by his direction; generally 362 170. Employer held not to be liable 362 171. Employer held to be liable 30!l 172. Instrumentalities not owned by the employer, but controlled by him, and used by him as a part of his plant 372 173. Liability of railway companies for the condition of cars received from other roads ; generally 373 174. Obligation of receiving company to inspect foreign cars 376 17-"). Manner in which foreign cars are constructed; how far u source of liability 383 170. Effect of statutory and constitutional provisions requiring railway companies to transport foreign cars 386 CHAPTER XIII. PIASTER'S DUTY WITH RESPECT TO THE EMPLOYMENT OV SERVANTS. A. General principles 390 ] 77. Nature and extent of the duty; generall}' 300 178. Duty considered as creating an exception to the doctrine of com- mon employment 392 179. Standard of care obligatory upon the master in regard to the selection of his servants 395 180. Unfitness injurious to the unfit servant liiniself 396 13. Cir.CUMSTANCES BEABING UPON THE QUESTION OF A BEllVANT's UOilPETE.XCV 397 181. Generally 397 182. Bodily qualities 399 183. Mental qualities 400 184. Disposition with which tlie work is done 402 185. Bad habits 402 186. Previous experience of the servant 403 187. Minority 407 188. Conduct prior to the time of the accident 408 a. No act of previous negligence shown 408 XX CONTENTS. 6. Single act of negligence c. Several acts of negligence _ 189. Act by which the injury was caused * 190. Derelictions of duty subsequent to the injury in suit 416 191. Disclaimer of fitness by delinquent servant himself 41J 192. Reputation *^^ 193. Certificates and licenses; evidential significance of 418 C. Master's knowledge, actual or constructive, of the incompetency, 418 JIUST BE SHOWN 193a. Generally • ■ *^^ 194. Duty to inquire into the fitness of u, servant at the time he is hired 421 195. Duty of the master to keep himself informed as to the fitness of a servant already in his employment 4-3 D. Circumstances bearing upon the question of the master's k.nowledge OF the servant's incompetence. 424 196. Incompetence of servant 424 197. Bodily and mental qualities of the servant 42G 198. Conduct of the servant prior to the accident 427 199. Act wliicli caused the accident 428 200. Length of the period during which the unfitness has continued . . 429 201. Promise by the master to discharge the delinquent ser\'ant 430 202. Reputation 430 203. Specific statements as to unfitness made by individual coem- ployees of the delinquent servant 435 E. Duty to employ as adequate number of servants 436 204. Generally 436 205. Master's performance of duty primarily a question for the jury. . 437 CI-IAPTER XIV. DUTY OF THE MASTER WITH REGARD TO ANIMALS. 206. Nature of duty explained 440 CHAPTER XV. DUTY OF THE ALiSTEE TO CONDUCT THE BUSINESS UPON A SAFE SYSTEM. A. Duty consiuered without reference to formal rules 443 207. Master bound to see that the instrumentalities are properly used 443 208. Application of this doctrine in specific cases 445 209. Duty to warn a servant in regard to transitory and sporadic dangers 448 209a. Limits of this duty : 455 B. Duty to formulate rules defining the manner in which the work IS to be done 461 210. Generally 461 211. Limits of the duty to promulgate rules 465 CONTENTS. xxi 212. Relation of tliis duty to that of instruction 468 213. Common usage as a test of the performance of the duty 470 -13a. Habitual practice; how far a legal substitute for a rule 472 213b. Duty to bring the rules to the notice of the servant 474 214. Duty to enforce the rules promulgated 475 215. Construction and meaning of rules 477 216. Rules prescribed must be definite and intelligible 481 C. PeKFORMAUCE of the duty IK SPECIFIC OASES 48:i 217. Operation of trains considered with reference to the safety of train creAVs 4y.3 a. Generally 483 6. Rules as to the meeting of trains 484 c. Rules as to notifying the crews of regular trains regarding the position of other trains of the same class 484 d. Rules as to the operation of trains not provided for in the regular time tables 486 218. — of employees engaged in track worl£ 489 219. — of car repairers 493 220. — of employees working in yards 496 221. Automatic and unauthorized nio\ements of cars 499 222. Track repairing as it affects the safe operation of trains 49!) 223. Loading of cars 499 224. Work in concerns other than railways 500 D. WirEN A RULE IS BINDIKG UPON A SERVANT 501 225. Introductory statement 501 226. No rule deemed to be binding unless it is brought to the knowl- edge of the servant 501 227. When a, servant is deemed to have knowledge of a rule 502 228. Reasonableness 507 229. Rules making servants the insurers of their own safety 509 230. Rules requiring the servant to examine the appliances used by him 511 231. Conflict between the obligation of a rule and other duties 511 232. Waiver of rules; when inferable from the masters acciuiescence in their violation 514 233. Rationale of the doctrine of waiver 519 234. Waiver considered with reference to an e.^press agreement to obey the rules 520 CHAPTEE XVT. DUTY TO INSTRUCT AND ^\ARX THE SERVANT. 235. Introductory 524 A . General principles 526 236. Master's knowledge of tlie abnormal conditions ; necessity for showing 520 237. No dut)' of instruction predicable wheie the danger in question was actually known to tlie serxant 528 238. No duty to instruct a servant as to dangers of which knowledg* is imputable to him 531 xxH CONTENTS. 239. Master is prima facie under no obligation to give instruction as to normal or ordinary risks 535 240. Master is prima facie bound to give instructions as to all abnor- mal or extraordinary risks 53 / 240a. Servant's comprehension of the risk, and not merely of the con- ditions, is the material point to be determined 543 241. Master's knowledge of the servant's ignorance of the danger; necessity for showing 54 J 242. Relation of the duty of instruction to the defenses of assumption of risks and contributory negligence 550 243. Relation of the duty of instruction to the duty of employing competent servants 553 B. Duty of inspection con.sidered yfitH refei-.ence to the expebience ok INEXPERIENCE OF THE SERVANT 553 244. Generally 553 245. Servant's experience ; deductions from 555 246. Servant's inexperience ; deductions from 556 0. Duty of instruction considered with reference to the servant's minority , 55s 247. Generally 55S 248. No duty to instruct minors as te risks which they presumably comprehend 502 249. Instruction of minors, considered with reference to their age merely SO.'i 250. Instruction of minors, considered with reference to their ex- perience 567 251. Position of minor servants after being properly instructed 567 D. Sufficiency of the instruction 56n 252. Generally .5()!J 253. What particularity in the instruction is obligatory 571 254. Adequacy of the means by which instruction is conveyed to the servant 577 CHAPTER XVII. ASSUMPTION OP RISKS BY THE SERVANT. 255. Introductory 5S0 256. Proper classificatiou of assumed risks considered 582 A. Assumption of risks considered with reference to the sebva.nt's KNOWLEDGE OR IGNORANCE THEREOF ,5S.1 257. General principle stated 583 258. Servant assumes risks resulting from conditions' for which he himself is responsible .")S(> B. Assumption of ordinary risks .58R 259. Ordinary risks presumed to have been undertaken by a servant. . oSS 260. Rationale of the doctrine of the assumption of ordinary risks. . 580 a. Presumption that ordinary risks are comprehended by a servant 589 &. Presumption that a servant agrees to undertake ordinary risks , , , , , , 502 CONTENTS. xxiii 261. What risks are deemed ordinary; generally 594 262. Risks caused by the acts of fellow servants 598 263. Risks arising from the character of the instrumentalities used. . 598 264. Risks created by permanent conditions incident to the business as openly conducted 600 265. Risks arising out of temporary conditions incident to the use of the 'instrumentaUties 601 266. Risks incident to specially dangerous employments 604 267. Risks incident to construction work 611 268. Risks incident to the work of restoring instrumentalities to a normal condition of safety 6 14 269. Risks incident to work the progress of which is constantly creat- ing new elements of unsafety 615 C. Assumption of exteaoedinaky kisks 619 270. Extraordinary risks not assumed by u, servcant 610 271. — unless comprehended by the servant 024 272. Application of the doctrine to specific cases 626 273. Rationale of the servant's nonassumption of extraordinary risks. . 630 274. Assumption of an extraordinary risk inferred from knowledge thereof 638 274a. Judicial statements of this doctrine 643 275. Doctrine considered with reference to the comparative knowledge possessed by the master and servant 648 275a. Instructions should be conformable to the doctrine 648 276. Rationale of the doctrine of the assumption of e.xtraordinaiy risks 650 277. Application of doctrine in cases where the injury is caused by a defective instrumentality 652 278. Application of doctrine in cases where the injury is caused bj' a faulty system of work 653 279. Limits of the doctrine 657 279a. Assumption of risk not predicable from knowledge of the condi- tions alone 663 279b. Comprehension of risk usually inferable from knowledge of con- ditions 070 280. Doctrine that the servant's knowledge of an extraordinary lisk does not charge him, as a matter of law, with its assumption. . 672 281. Temporary forgetfulness of a known danger at the time of the accident 675 282. Failure of the servant to notify the master as to the existence of the dangerous conditions 081 283. Servant's position the same whether the risk existed when he be- gan Avork, or supervened afterwards (jSO 284. Length of time during which work ^\as continued after notice of the risk was received (iS't 285. Servant induced by master's promise to continue work C^l 286. Fact that injury was received in obeying a special order given ad liano vice in ; siguilicance of Gn2 287. Assurance by master or vice principal that the conditions were safe; effect of . , , 0IJ3 xjtlv CONTENTS. 288. Servant's acceptance of a known risk usually presumed to be vol- untary 69-'? 289. Circumstances under which a servant is not deemed to have acted voluntarily in exposing hinjsulf to a risk 69'> o. Minors 690 6. Seamen 69''> u. Convicts whose labor is hired l)y private employers 698 d. Statutory provisions restricting servant's riglit to abandon the employment 698 290. Complaint, objection, or protest omitted or made 699 a. No complaint, objection, or ])rotest established l)y the evi- dence 699 6. Complaint, objection, or protect estal)lislied by the evidence. . 700 D. Assumption' of risk.s by jiixon serva.xts 702 291. Ordinary risks 702 292. E.xtraordinarv risks 706 CHAPTER XyUI. CONTRIBUTORS' NWilJUKXC'E IN RESPECT TO THE AC'CKPTANCE OR RETENTION OF A GIVEN EMPLOYMENT. 29.3. Introductory 709 A. Under what circumsta.nces the servakt's actiOxX is barred 709 294. Servant's aceeptanee of duties for which he is not Jittcd 709 295. Negligence not inferred from continuance of work, where serv- ant had no knowledge of the abnormal risk which caused his in- juries 710 290. Negligence not necehsarily inferable where knowledge of defects only is shown 712 297. Knowledge of defects, — when sufficient to justify inference of neg- ligence 716 298. Negligence inferred, as matter of law, where knowledge both of defects and consequent risks is shown 721 298a. Illinois doctrine 723 299. Rationale of the servant's inability to lecover, on the ground of negligence in continuing work 724 300. When negligence is not imputed, as a matter of law, to a servant Avho knows of a risk 727 .■501. ilissouri doctrine as to the effect of the servant's knowledge. . . . 730 302. Voluntary or invoUmtary quality of the servant's action in con- tinuing work 73o a. Will power of servant overcome 736 h. .Servant's fear that he may lose his ))Osition if he disobeys. . 736 u. Volimtary action not predicable in the case of seamen 737 302a. Duty of the servant to quit tlie employment when he ascertains that he is e.KpOnOil to an abnormal ri.sk 73S 303, P'ailurc of servant to report u defect 742 a. Generally 742 b. To whom the report should be made 744 Contents. xxv d. Sufficiency of the notice 745 304. Duty of servant to remedy defects 745 B. Relation between the deJ'^enses of assticptiox of risks and contribu- TOKY negligence 745 305. Generally 745 .306. Logical independence of the two defenses 747 307. Contributory negligence at the time of the injury is material only in cases where there has been no assumption of the risk 750 .308. Cases not giving due effect to this principle 754 309. Defenses confused owing to inaccuracies of terminology 759 310. Doctrinal confusion Ijetween the defenses 765 311. Concluding remarks 77I CHAPTER XIX. CONTRIBUTORY NEGLIGENCE AT THE TIME THE INJURY WAS RE- CFAVET). 312. Introductory 776 A. General principles 777 313. Servant is bound to use proper care in performing his duties 777 314. Local doctrines as to contributory negligence 779 a. Alabama 779 6. Florida 781 c. Georgia 781 d. Illinois 782 c. Kentucky 782 f. Tennessee 782 315. Rule in the case of seamen 783 316. Contributory negligence of deceased servant bars action by per- sonal representative 783 317. Contributory negligence as a defense to actions by parents for loss of services 784 318. Negligence of another person; when imputed to servant 785 319. Negligence not predicable unless servant was aware of the condi- tions which caused his injury 780 320. — and understood the dangers created by those conditions 790 321. Unexpected situations; negligence not predicable in regard to. . 792 322. Incurring of known danger; negligence not necessarily predicable with regard to 794 323. Servant's negligence not a bar to his action unless it was an ef- ficient cause of his injury , 796 324. Illustrative cases turning upon proximity of cause 800 325. Negligence of fellow servant of injured sen'ant a partial cause of the injury 805 326. Servant's negligence not a bar to the action if it is merely a con- dition of the injury 806 327. Contributory negligence of servant followed by negligence on the part of the master or another employee 807 B. What constitutes contributory negligence on the part of a servant 810 xxvi CONTENTS. 328. Generally 810 ;!29. Care proportionate to the danger must be exercised 813 330. Respective provinces of court and jury in determining the serv- ant's negligence °^ 331. Failure to use appropriate precautions in dangerous situations. . 810 332. Failure to give proper attention to surroundings 82.) 332a. Duty omitted in respect to stable or persistent conditions 82.') 332b. Omission of duty in respect to transitory and sporadic conditions 830 333. Selection of the more dangerous of two available courses of action; generally 839 334. Taking or remaining in an unnecessarily dannpious position; cases relating to work on railwaj's 843 335. — cases not relating to work on railways 860 336. Going into a dangerous position without notifying persons from whose acts danger may be anticipated 868 337. Going into or remaining in an imauthorized position 860 338. Doing work in an unnecessarily dangerous manner; cases relating to work on railways 8 1 339. Doing work in an unnecessarily dangerous manner; cases not re- lating to work on railways 870 340. Doing acts with undue haste 87S 341. Negligence inferred from the use of defective or \nifit appliances. . 879 342. Negligence inferred from the use of appliances for a purpose other than that for which they v.-evc designed 881 343. Negligence in respect to the creation of the material conditions which. caused the injury 882 344. Negligence in respect to the exercise of functions of control 885 34.5. Failure of injured servant to influence the conduct of coemployees not under his control 887 346. Departure from customary methods of woric 888 C. QUALIFYIXG CIECUMBTA:\0ES TF.JfUTXG TO NEGATIVE THE IXFEBEXCE OF CULPABILITY 880 347. Qualifying circumstances enumerated 889 348. Minority of injured esrvant 890 349. Conditions or methods of work not under the control of the in- jured servant 897 350. Temporary forgetfulness of danger; contributory negligence nega- tived on account of 897 351. Limits of this doctrine 902 352. Compliance with a rule 904 353. Conformity to a customary practice 905 354. Course of conduct selected by the servant, with reference to the pre- sumption that the plant was not defective 911 355. — and that the work done in connection with the plant will be pru- dently done 915 356. Limits of the servant's right to act upon these presumptions .... 924 357. Necessity of act which caused the injury 927 358. Act done in an emergency 929 359. Act done under the influence of bodily pain 93.i 360. Act done in attempting to save the life of another person 935 361. Act done in attempting to preserve the employer's property 939 CONTENTS. .-TEM- PLATED BY THE INJURED SERVANT 1353 495. Generally 1353 496. Diversitj' of duties or departments not sufficient to exclude de- fense of common employment 1358 497. Contiguity a material, though not decisive, factor 1359 498. Illustrative eases of common employment 1360 499. Disconnection of duties, when so great as to negative implied acceptance of the risk of a, fellow servant's negligence I37S C. Theory that common employment depends on identity of depaict- MEKTS OF WORK OR CONSOCIATION OF DUTIES 1383 500. Identity of department as a test, generally 1383 501. Consociation of duties, as a test of common employment 1386 50Ia. Same subject continued 1390 502. Relation between the theories of nonassignable duties and conso- ciation of duties 1305 503. Difference or identity of department not necessarily conclusive under the consociation doctrine 13i)6 504. Consociation primarily a question of fact for the jury 1400 505. General discussion of the doctrine of consociation 1401 506. Illustrative cases 1405 CHAPTEK XXVIII. VICE PRINCIPALSHIP AS REFERRED TO THE TEST OF SUPERIORITY OF RANK. A. Introductory 1417 507. General statement 1417 508. Representative character of servant depends on the actual func- tions discharged by him 1418 509. Temporary vice principals 1420 510. Sufficiency of a complaint based upon the vice principalship of the negligent servant 1422 511. Functions of court and jury in determining whether the negli- gent employee was a vice principal }*23 512. Burden of proof 1425 513. Scope of following subtitles 1425 M. and S, in. xxxiv CONTENTS. B. Mere inequality of bank, significance of 1426 514. Usually held not to warrant inference that the superior servant is a vice principal 1426 C. Doctrine that vice peincipat-siiip is not deducible merely from the POSSESSION of a power OF CONTROL OVER THE INJURED SERVANT. 1420 515. General statement of the doctrine 1429 516. Rationale of the doctrine 1431 517. Qualification of the doctrine in cases where an order takes a servant outside the original scope of his .employment 143'') 51S. Power of hiring and discharging subordinates, significance of . . . . 1433 519. Application of the doctrine to the various grades of supervising employees 1436 520. Illustrative cases 1440 D. Doctrine that all superior servants are vice pr.iNcirALs as regards THEIR subordinates ) 456 .'iii 1 . General statement ]4.i(i 521a. Relation of the superior serva.nt doctrine to the doctrine that the head of a department is a vice principal 1458 522. Rationale of the doctrine 1459 a. Unequal knowledge of superior and subordinate 1460 6. Inabilitj' of master or superior agents to supervise all de- tails of the work 1461 c. Obligation of servant to obey his superior 1461 d. Dutj- to use care in giving orders regaidtd as one of the non- assignable duties of the master 1461 e. Summary 14G7 522a. What constitutes the exercise of conLrol witliin the meaning of the doctrine 1469 523. Existence or absence of a po^^•er to hire and discharge subordi- nate ; significance of 1470 524. Illustrative cases 1474 v.. Relation of a general managing ageni to iii.s suhordixates 1484 525. Introductory 1484 520. Doctrine that a general manager is a vice principal. English, Scotch, and colonial cases 14S7 527. — American cases 1491 528. Rationale of the doctrine 149y 529. Doctrine that a general manager is not a vice principal. Eno-- lish and colonial cases 1500 530. — American cases 1505 531. Opposing theories reviewed 1506 V. ReL.ATION of a DEPAKTMENTAI manager TO HIS SUBORDI.MATES 1513 532. General statement j5j;j 533. Rationale of the master's liability for tlie negligence of a depart- mental manager J5J1- 534. Limits of the doctrine of departmental control 1.517 5.35. Supervising employees hold to be heads of departments 1.523 536. Supervising employees held not to he heads of departments, , . , . 1532 CONTENTS. XXXV CHAPTER XXIX. FOR WHAT ACTS OF SUPERIOR SERVANTS A IMASTER IS RESPONSIBLE. 536a. Necessity of proving that tlie act or omission which caused the injury vi^as negligent loS.j 537. No responsibility as to matters beyond the scope of the author- ity of the superior servant 1.53(i 538. Distinction between official and nonofficial acts of supervising employees ; generally 1,541 539. Distinction considered with relation to the doctrine that the nature of the negligent act is the test of liability 1543 540. Breach of non-delegable duties by any superior servant, master liable for 154.5 541. Issuance of orders deemed to be an official act 154!) 542. Failure to protect subordinates from transitory dangers deemed to be official negligence 1553 543. Theory that a vice principal does not represent the master except in so far as he is discharging some non-delegable duty 1555 544. Theory that a vice principal does not act as the master's rep- resentative when he engages in manual labor 15.57 545. Qualifications of this theory 1558 54G. Theory that a vice principal represents the master even when he participates in manual labor 1563 547. Discussion of the doctrine of the dual capacity of vice principals. 1.564 a. With reference to the standpoint of the coiirts which reject the superior servant doctrine 1564 J. With reference to the superior servant doctrine 1571 CHAPTER XXX. SUMMARY OF DECISIONS BY THE VARIOUS COURTS WITH REGARD TO THE RELATION OF SUPERIOR SERVANTS TO THEIR SUBORDINATES. 548. Introductory statement 1574 549. Decisions in each jurisdiction 1575 CHAPTER XXXI. VICE PRINCIPALSHIP AS DETERMINED AVITH Rirt'EREXCE TO THE CHARACTER OP THE ACT WHICH CAUSED THE IN.IURY. 550. Introduetorj' 1611 A. Master liable for any negligence which i.\\ol\e.s the bheach of one OF his personal duties 1614 551. Generally 1611 552. Various forms in which the master's responsibilitj' is stated. . . . 161') 553. Subsidiary consequences deduced from tlie general principle 1621 554. Rationale of the doctrine of non-delegahle duties, ,....,.,,,.,,, 1622 xxxvt CONTENTS. 555. Master sometimes liable both on account of the character of the negligent act and the official position of the negligent servant 162« .i.')(i. Doctrine of non-delegable duties applicable to artificial persons. . 16'2'J 557. Servants of contractors, when precluded from availing thcm- sehes of the doctrine in actions against their masters 1<)2'.) 558. Delpffation of personal duties to an independent contractor, effect of 1«30 55fl. Saiiir subject continued. Opposing doctrines discassed 10.30 560. Massachusetts doctrine "' '' 561. Servants may act in a dual capacity ' ^^ ' 562. Pleading 1<54:! .56.3. Burden of proof 1 0-^' 564. Propriety of instructions ' 'J44 5U4a. Functions of court and jury 16+-) B. What duties are deemed to be NON-DEr^EOABLr, 1047 565. Duties imposed bj- statute ' 04 1 a. Quality of duty unchanged by statute 1647 b. Quality of duty altered 1 04!) 566. Duty to see that the inorganic instrumentalitips of tlic work are reasonably safe; general rule stated 1650 667. Duty to see that tlie inorganic instrumentalities of work, us or- iginally supplied, satisfy the legal standard of safely .... 1 652 a. Knglish, Scotch, and colonial doctrine 1652 6. American doctrine 1654 568. Duty to see tliat the inorganic instrumentalities are maintained in a suitable condition for the work to bo done hehl to be )ion- delegable 1664 569. Same duty held to be delegable 1673 570. Duty to see tliat worn out or otherwiso defectixe piii'ts of insti'u- mentalities are replaced by suitable substitutes 1674 571. Duty to furnish proper medical treatment to sick or injured servants 1675 572. Dutj' to hire suitable servants 1675 573. Duty" to employ servants sufficient in number for the work in hand 1679 574. Duty to frame rules and regulations for the conduct of the business 1680 575. Duty to bring rules and regulations to the knowledge of em- ployees 1682 576. Duty to carry out regulations, how far absolute; generally.... 1683 577. D)ity to carry out regulations with respect to the movements of trains 1687 7. Doctrine that train despatchers are vice principals; gen- erally 1687 b. Train despatchers represent the company as to special orders suspending regular timetables 1688 , ;. Doctrine that train despatchers are not vice principals 1693 Liability of railway companies for the negligence of serv- ants who transmit the orders or see that they are carried out , 1693 CONTENTS. xxxvii 578. Duty to impart information as to permanent dangers normally incident to the work at the time it is entered upon 1691 579. Duty to impart information as to permanent dangers superadded to the environment after the work has begun 1699 580. Duty to warn as to dangers of the transitory class, occasionally supervening during the progress of the work 170:1 581. Duty to inspect instrumentalities; generally 170-1 582. Duty to inspect instrumentalities at the time they are first brought into use 170.j 583. Duty to inspect instrumentalities during the time they are kept in use 170(i 584. Duty to inspect instrumentalities belonging to another person, but temporarily used by the master 1712 CHAPTEK XXXII. EXTENT OF AN EMPLOYER'S LIABILITY EOR NEGLIGENCE IN REGARD TO THE DETAILS OF THE WORK. A. GEJIEBAIiY 1715 585. Difficulty of defining boundary line between the domains of lia- bility and nonliability 171-3 586. Supervision of details, not a master's duty 1719 587. Merely transitory perils, master not bound to protect the servant against 17- I 588. Dangers caused by the progress of the work, master not bound to protect servant against 1122 589. Preparation or care of instrumentalities, master not responsible for, where these functions are a part of the work to be done. . . 17'2:i 590. Negligent xise of safe appliances by fellow servant, master not responsible for 172.3 591. Rationale of doctrine exempting master from liability for negli- gence in carrying out the details of the work 172^ 592. Pleading 1729 a. Declaration 1729 6. Plea 1730 593. Instructions 1730 594. Functions of court and jury in passing upon the evidence 1731 595. Explanation of the classification of the cases cited in the ensuing sections 1733 B. Negligence of coservants involving merely the use of the instru- mentalities, MASTER NOT RESPONSIBLE FOR 1733 596. Orders respecting the use of the instrumentalities ' 170! a. Generally 1733 6. Order accompanied by an assurance of safety ': 1733 597. Choice of particular methods of work 1735 598. Disposition of the force of employees available for the \ rk in hand 1736 599. Assigning servants to work for which they are unfitted 1736 600. Negligence in sending servants into abnormally dangerous places >vithout warning' , •,-••, • 1737 xxxviii CONTENTS. 601. Failing to wam servants as to dangers arising from the execu- tion of the details of the work 1740 602. Absence from the post of duty 174:^ 60.S. Selecting an imperfect appliance from the stock available 1743 604. Failing to use the instrumentalities furnished by the master. . . . 1745 60.1. Negligence in failing to discard a defective for a suitable instru- mentality 1747 606. Using instrumentalities in a manner not contemplated or author- ized by the master 1747 607. Giving of signals 1748 608. Negligence in carrying out the express orders or regulations of the master 1749 609. Failure to give instruction 1751 610. Manipulation of the instrumentalities during the progress of the work 1754 611. Negligence in the transmission of the master's orders to other servants 1755 C. Neoltgence op cosbbvants in bespeox to the pebpakation oe steuc- TUBAL MODIFICATION" 01' INSTUTIMEKTALITIES OB TIIEIE PARTS, WHEN NOT IMPUTED TO THE MASTER 1769 612. Introductory 1769 612a. Negligence which produces structural unsafety of a temporary character 1770 613. Negligence in failing to adjust or secure instrumentalities or their parts while in use 1772 614. Negligence in the preparation of temporary structures or other instrumentalities as a part of the work; general rule 1777 615. Rationale and limits of a master's exemption from liability for the adjustment or preparation of instrumentalities 1780 616. Special circumstances not affecting the extent of the master's liability 1789 a. Superior rank of the delinquent employee 1789 6. Similarity or dissimilarity of the work in which the delin- quent and injured servants were engaged 1790 c. Completion of appliance before plaintiff entered the employ- ment 1792 617. When the delinquency is deemed not to be in respect to the de- tails of the work 170.t D. Negligence of coservants whose dcty it is to keep the instru- mentalities IN proper CONDITION, WHEN NOT IMPUTED TO THE MASTER 1799 618. Theory that a master is never liable for negligence in regard to inspection and repairs 1799 619. Theory that the liability of the master depends on the subject- matter of the inspection or repairs neglected 1801 620. Master liable where the delinquent servant was engaged in a dif- ferent class of work 1810 621. Negligence in failing to replace an unsound by a sound appliance. when master not liable for 1810 622. All employees engaged in repairing regarded as eoservants of each other 181? CONTENTS. xxxix CHAPTEE XXXIII. LIABILITY OF THE MASTER CONSIDERED WITH REFERENCE TO THE QUESTION WHETHER THE INJURED PERSON WAS A SERVANT IN RE- SPECT TO THE WORK IN HAND. 623. Introductory 1822 A. Liability as dependent upon the temporary suspension or intermis- sion OF THE RELATION OF MASTER AND SERVANT 1828 624. Servants carried on vehicles belonging to their employer 1823 a. Servants traveling in the performance of their contract assume known risks 1824 h. Negligence of eoservants operating the vehicles, when deemed to be a risk assumed 1824 c. Rationale of these cases 1827 d. Assumption of the risk of the negligence of servants not operating trains 1833 e. When servants traveling on their employers' vehicles are deemed to be passengers 1832 f. Master's obligations inure to benefit of servant traveling in course of his employment 1835 625. Servants in various other situations 1835 C25a. Temporary intermission of relation of master and servant never produced by the servant's neglect of his duties 1839 B. Liability as dependent upon the question whether the act from WHICH THE INJURY RESULTED WAS OR WAS NOT AUTHORIZED. . . . 1840 620. Presence of servant at the place where the accident occurred. . . . 1840 u. Circumstances under which recovery has been allowed.... 1840 6. Circumstances under which recovery has been denied 1845 0. Right of recovery considered with reference to the culpable or nonculpable quality of the servant's conduct 1849 627. Servant's use of the given instrumentality 1850 628. Servant's use of the given instrumentality in a certain manner. . 1851 629. Servant's unauthorized performance of certain work; generally. 1851 630. Right of action where the injured person was not in the service of the defendant for any purpose 1852 631. Volunteers subject to same burdens as servants 1854 632. Persons not deemed to be subject to the disabilities of volunteers 1860 633. Right of action where servants undertake new duties 1863 634. Same subject continued 1864 635. Performance of unauthorized duties, considered as being indica- tive of negligence 1869 636. Minority as an element 1871 CHAPTEE XXXIV. EFFECT OF GENERAL STATUTES UPON THE EXTENT OF A MASTERS LIABILITY. 637. When employees are within the purview of such statutes 1873 638. Effect of such statutes considered \\\i\\ relation to the doctrine of common employment 1874 3^1 CONTENTS. CHAPTEK XXXV. STATUTES ENACTED EXPRESSLY FOR THE BENEFIT OF SERVANTS. INTRODUCTOKY CHAPTER. -\ . CONSTRUCTIOA' AND EF.FECT OF SUCH STATUTES 1887 639. On what footing these statutes are construed 1887 fl40. Employer not responsible for unauthorized acts of statutory vice principal 1888 641. When the statutory right of action accrues and is terminated.. 1888 642. Necessity of proving knowledge on the defendant's part 1889 B. CONSTITUTIONALITy 1890 643. Statutes entirely abrogating the doctrine of common employment with respect to all employers 1890 644. Statutes modifying the doctrine of common employment in re- gard to all private corporations 1890 645. Statutes abrogating or modifying the doctrine of common em- ployment with respect to all the sersants of railroad com- panies 1891 a. Georgia 1891 6. Missouri 1892 0. North Carolina 1892 d. Ohio 1892 e. Te.xas 1892 /. Utah 1893 g. Wisconsin 1893 646. Statutes abrogating the doctrine of cornuion employment with respect to railway servants engaged in opeiation of the road. . 189;! 647. Statutes imposing special duties upon various classes of em- ploj'ers 1896 a. Street car companies 1896 6. Operators of mines 189S 648. Statutes restricting the defenses open to emplciyers 1899 C. Defenses available in actions undek st.vti-tes 1899 649. Generally 1899 650. Assumption of risks 1900 a. Ordinary risks assumed 1900 6. Possibility of future negligence on tlie ]juit of statutory •\ice principal, not a risk assumed 1901 c. Extraordinary risks; how far as.-nnied, in the absence of express provisions on the subject 1901 d. Effect of express provisions with regai-d to assumption of extraordinary risks 1904 651. Contributory negligence 1905 a. Generally 1905 6. Availability of the defense, as dependent on the provisions of the statute sued upon 1905 c. Availability of defense inferred from language of statute. . 1900 (?. Knowledge of risk, how far negligence is inferable from, . . , 1909 CONTENTS. xH 652. Limits of the doctrine that contributory negligence is a bar to an action 1911 C52a. Volenti -non 'fit injuria 1912 CHAPTER XXXVI. STATUTES DECLARATORY OF COMIION-LAW DOCTRINES. A. MlNKESOTA 1917 f)52b. Text of statiite 1917 653. Effect of this statute 1917 B. Califoknia and Dakota 1918 G53J. Text of statutes 1918 GSSJ. Effect of these statutes 1918 C. Geokgia 1921 CHAPTEE XXXVII. ENGLISH EMPLOYERS' LIABILITY ACT OF 1880 AND THE AMERICAN, CANADIAN, AND AUSTRALIAN STATUTES MODELED THEREON. 653a. Introductory 1925 A. Text of the statutes 1925 654. England 1925 655. Alabama 1930 656. MassachuseUs! 1931 657. Colorado 1935 658. Indiana 1930 659. New Yori< 1938 660. Ontario and other Cauadiau provimes 1939 660a. Australian statutes 1945 e. Effect of the statutes as a w hulk 1946 661. Generally 1946 662. Modified operation of these acts in the case of servants of munici- pal corporations 1947 663. Employers' liability acts; wliether strictly or liberally construed 1948 664. Concurrent rights of action under the statutes and at common la^y 1949 665. Liability of infants under the statutes 1950 »- Liability for defects in the ways, etc 1950 666. Efi'eet of the statutory provisions as to defects; generally 1951 667. Master not liable unless tlie defect alleged was the proximate cause of the injury 1951 668. What instrumentalities are covered by the terms "ways,' etc.. . . 1952 a. Two or more descriptive terms used in combination 1952 6. "Ways" 1953 c. "Works" 1954 d. "Machinery" 1954 e. "Plant" 1955 xlii CONTENTS. G69. Significance of the qualifying phrase, "connected with or used in the business of" the employer 1955 a. Instrumentalities temporarily used by the defendant's serv- ants in the transaction of his business 1955 6. Structures, etc., in course of erection or demolition 190 1 c. Instrumentalities not yet brought into use, or disused 19G2 670. What constitutes a defect 1963 671. Specific examples of defects 1967 a. Defects in the condition of the ways 1967 6. Defects in the condition of the works 1967 0. Defects in the condition of the machinery 1 968 d. Defects in the condition of the plant 1968 672. Conditions not amounting to defects 1969 673. Defective system; employer liable for 1974 674. "Not discovered or remedied, owing to the negligence," etc 1975 o. Generally 1975 6. "Not discovered" 1976 c. "Not remedied". 1977 d. "Person intrusted with the duty," etc 1978 675. Abnormal conditions resulting from the use of the machines; how far regarded as defects 1979 676. Defects in temporary appliances constructed by the servants themselves not deemed to be chargeable to the emploj'er 1982 677. Duty of servant to report defects 1983 a. Statutory and common-law doctrines compared 1983 6. Position of a servant who fails to report a defect 1986 c. Position of a servant who has reported a defect 1987 D. Liability foe the nequgence of ejiployees exercisi.xg superintend- ENC3E 1989 678. Introductory 1989 679. Conditions precedent to recovery; generally 1990 680. What employees are superintendents under the English, New York, Massachusetts, and Colorado acts 1990 a. General remarks 1990 6. Employees held to be vice principals 1990 c. Employees for whose negligence the master is not liable 1993 681. — under the Alabama act 1994 682. — under the Canadian and Australian acts 1996 683. Employees .controlling machinery; status of 1996 684. Master liable though injured servant was not under the control of the negligent employee 1997 685. Deputy superintendents; liability for negligence of 1998 686. Necessity of proving that the injurious act was negligent 1999 687. Acts constituting negligence in the exercise of superintendence. . 2002 688. Acts done by superintendents while participating in the work; liability of master for 2007 E. Liability for injuries caused by the negligence of a person to WHOSE orders the INJURED SERVANT WAS BOUND TO CONFORM. . 2013 689. Introductoi-y 2013 690. Conditions precedent to recovery 2013 COKTENTS. xliii 691. To what superior servants the subsection is applicable 2014 692. Temporary substitutes for regular foremen, status of 201(i 693. To what orders a servant is bound to conform 2017 694. When a servant is deemed to have acted under orders 2018 695. Necessity of establishing a causal connection between the order and the injury 2019 696. Necessity of showing negligence on the part of the superior servant 2024 F. LlABILITy FOB INJtTKIES CAUSED BY ACTS OR OMISSIONS DONE OR MADE IN OBEDIENCE TO KULES 2027 698. Introductory 2027 699. Necessity of proving negligence in respect to the rules, etc., or to particular instructions 2027 700. "In obedience to the rules" 2028 701. "Delegated with the authority of the employer" 2029 Gr. Liability foe negligence of certain specified railway employees . . 2029 702. Generally 2029 703. Persons having "the charge or control of signal points" 2030 704. Person in "charge or control of a locomotive engine" 2032 o. What is an engine under the statute 2032 6. What employees are deemed to be in "charge or control" of engines 2032 705. Person having "charge or control of a, train'' 2034 a. What constitutes a train, generally 2034 &. How many cars constitute a train 2035 c. What employees are deemed to have "charge or control" of a train ; conductors 2030 d. Employees other than conductors 2037 706. Person having "charge or control of a ear" 2040 706a. Person having "charge of a signal" 2040 707. On a "railway" or "railroad" 2040 H. Service of notice on the employee 2042 708. Notice a condition precedent to the maintenance of an action under the statute 2042 709. Notice not essentiapl to recovery if facts constitute a cause of action at common law 2043 710. Notice must be given in writing 2043 711. Service of the notice 2044 a. Service on corporations 2044 6. Service through the postoflice 2045 0. Service in case of death 2045 d. Excuses for failing to serve the notice 2045 712. Sufficiency of the particulars contained in the notice 2047 a. Generally 2047 6. Inaccuracies which do not invalidate a notice 2048 I. Death of employer or injured employee; how the right of action is affected by 2050 713. Scope of this subtitle 2050 714. Death of employer; effect of 2050 715. Death of plaintiff; pending action aliiitrd l>y 2050 716. Suits by executors or administrators 2050 xliv CONtENTS. J. Persons entitled to sue under thic acts 2053 717. General remarks 2053 718. Servants temporarily under the control of the dolendaiiC 2033 719. Volunteers 2054 720. Persons who have permanently or temporarily ceased to be in the employment of the defendant 2054 721. Independent contractors 2054 721a. Servants of independent contriuiors 2054 722. Railway servant 2055 723. Workmen 2056 a. Domestic or menial servant 2057 b. Laborer 2058 c. Servant in husbandry 2058 d. Journeyman 205!) e. Artificer 2059 f. Handicraftsman 2059 g. Miner 2059 h. Persons "otherwise engaged in manual labor" 2060 i. "Working under a contra ct with an emploj'er" 2063 724. Seamen 2065 725. Servants working in goveiiiment departments 2066 K. Damages eecoverable 2060 726. Damages recoverable where tlie injured servant is himself the plaiutiflF , 2060 727. Damages recoverable by the personal represeiitati\ps of an in- jured servant 2067 L. Trial practice 2068 728. Scope of subtitle 2068 729. Within wliat period the action must be brouglit 2008 730. Service of summons: waiver of irregulnvity in 2069 731. Joinder- of employer and negligent coemployee as parties de- fendant 2069 732. Institution of dibtinet snils at cunimon law and under these acts 2069 733. Joinder of causes of action vmder the different provisions of these acts 2069 734. Joinder of causes of action under these acts and at common law 2070 734a. Joinder of causes of action undi'r these acts and other statutes. . 2070 73.1. Election bet^^■een dift'erent counts 2071 730. Former recovery in action ander another statute or at common law 207 1 737. Complaint 207 1 a. Relation of employer and employed 2072 b. Necessity of alleging that negligence -was committed bj' a statutory vice principal 2072 c. — and by such a vice principal while acting in the line of his duty 2072 d. Sufficiency of the allegation of negligence 2073 e. Notice of injury 2077 /. Necessity of alleging absence of contributory negligence. . . . 2077 738. Sufficiency of the plea 2078 CONTENtirJ. xlv 739. Instructions to jury 2078 740. Provinces of court and jury 2078 741. Removal of actions to higher courts 2079 741a. Appointment of assessors 207!) 742. Questions which may be reviewed on appeal 2080 CHAPTEK XXXVIII. STATUTES OF ARKANSAS, MISSISSIPPI, MISSOURI, MONTA^-A, OHIO, SOUTH CAROLINA, TEXAS, UTAH. 743. Scope of chapter 2081 A. AKIiANSAS 2082 743a. Text of statute, § 1 2082 744. Effect of this section 2082 744a. Text of statute, § 2 2083 745. Effect of this section 2083 B. Mississippi 2084 745a. Text of Constitution and h(.iil.ules 2084 745b. Provisions construed 2085 a. Superior servants 2085 6. Servants in different df piuliiients 2085 C. MissouEi 208G 746. Text of statute, § 1 2086 745. Effect of this section 2083 746aa. Text of statute, §§ 2-4 2086 D. Montana 2087 746b. Text of statute 2087 747. Effect of this statute; 2087 R. Ohio 2088 747a. Text of statute, §§ 1, -1 2088 747b. Effect of these sections 2089 747c. Text of statute, § 3 2089 748. Eft'ect of this section 2089 F. South Carolina 2091 748a. Text of Constitution 2091 748b. Effect of this provision 2092 G. Texas 2092 749. Statutes as to railway service 2092 749a. Construction of this provision 209.T 749b. Text of statutes as to vice principals 209i 750. What employees are vice principals under this section 2094 750a. Text of statutes as to common service 2098 751. Who are fellow servants under this section 2099 751a. Other provisions of Texas statute 2104 H. Utah 2104 751b. Text of statute 2104 752. Construction of this provision 2105 xlvi CONTENTS. CHAPTEE XXXIX. STATUTES OF COLORADO, GEORGTA, IOWA, ICANSAS, MINNESOTA, NORTH CAROLINA, WISCONSIN, WYOMING. 753. Scope of chapter 210fi A. C0LORM)0 2107 753a. Text of the statute 2107 754. Effect of this statute 2107 B. Florida 2107 754a. Text of the statute 2107 755. Effect of this section 210S 0. Georgia 2108 756. Statute as to railway service 2108 757. Effect of these sections 2110 758. Provision declaratory of the doctrine of coiiiinon employment. . . 2111 D. Iowa 2112 758a. Statutory provisions 2112 759. What injuries are within the purview of the statute 2113 E. Kansas 2119 759a. Statutory provisions 21 in 760. What injuries are within the scope of the statute 2119 F. Minnesota 2121 760a. Statutory provisions 2121 761. What injuries are within the purview of the statute 212" G. North Carolina 2124 761a. Statutory provisions 2124 761aa. Burden of proof 212.1 762. Effect of statute 2125 H. Wisconsin 2120 763. Statutory provisions 212(i 764. Effect of these statutes 2127 7G4a. Later legislation 2129 765. Effect of this provision 2129 L Wyoming 2129 765a. Statutory provisions 212!) CHAPTEE XL. ENGLISH WORKMEN'S COMPENSATION ACT 1897. 766. Purpose and effect of tlie act; generally 2132 A. Circumstances under which compensation is recoverable 2133 766a. Text of section 1 2133 767. "Accident" ( sec. 1, subs. 1 ) 2135 768. "Out of, and in the course of, the employment" (see. 1, subs. 1) 2135 769. Period of disablement (see. 1, subs. 2, a)' 2138 770. Alternative remedies open to workmen (see. 1. subs. 2. 6) . . . . 2138 771. "Serious and wilful misconduct" (see. 1, subs. 2, c) 213S 772. Arbitration (sec. 1, subs. 3) 2139 CONTENTS. xhii 773. Recovery in cases where nonliability apart from tlie act is estab- lished ( sec. 1, subs. 4 ) 2140 774. Application of fines imposed on other proceedings (sec. 1, subs. 5) 2140 774a. Text of section 2 2140 775. Notice of the accident ( sec. 2, subs. 1 ) 2141 a. "Proceedings" 2141 5. "Claim for compensation'' 214 1 0. Excuses for not serving notice in timo 2141 775a. Text of sections 3 and 4 2142 770. Liability to servants of contractors ( sec. 4) 2143 a. Generally 2143 6. "Undertakers" 2143 i;. "Work merely ancillary or incidental to' 2143 776a. Text of section 5 2144 777. Proceedings under this section 2144 777a. Text of section 6 2144 778. Proceedings under section 6 2143 Employments to WHion the act is APrtiCABLE 2145 778a. Text of sections 7-10 2145 779. Scope and effect of these provisions; generally 2140 780. Meaning of the phrase "on or in or about," when used in con- nection with various kinds of concerns 2 146 781. "On or in or about a building'' which fxceeds 30 feet in height. 2148 a. Height of building 2148 &. "Being constructed or repaired" 2149 c. What is a "scaffolding" 2150 782. "On or in or about a building in which machinery driven by steam," etc 2152 783. Meaning of "railway" 2152 783a. — of "factory" 2152 li. "Dock, wharf, quay" 2153 6. "Premises wherein steam, -sinter, or other mechanical power is used" 2155 c. "Machinery or plant" 2155 d. "Premises wherein . . :iny manual labor is exercised . for purposes of gain" 2150 e. "Machinery used in the process of loading or imloading".. 2150 f. "Bleaching or dyeing works'' 2150 g. "Shipbuilding yard" 2157 784. — of "engineering work" 2157 785. — of "mine" 2157 780. — of "undertakers" 2158 a. In the case of a factniy 2158 &. In the ease of engineering work 2159 787. — of "woi-kman" 2160 a. Contractors 2160 &. Seamen 2161 787a. — of "dependents" 2101 a. In England and Ireland 2161 xlviii CONTENTS. 6. In Scotland 2162 788. "Shipbuilding yard" (sec. 7, subs. 3) 2162 C. Compensation eecoverable tjndek the act 2163 788a. Text of statutory provisions 2163 789. Amount recoverable in case of death by persons wboUy dependent on workman's earnings (par. 1, a, i) 2165 790. — by persons partially dependent on the workman's earnings.. 2165 791. —in case of total or partial incapacity (par. 1, b) 2160 792. Average weekly earnings 2167 u.. Generally 2167 6. Period of employment ueceshnry to furnish basis for com- putation or average weekly earnings 2168 c. Trade and calendar weeks 2169 d. Continuity of the employment 2170 e. Deductions 2171 793. Medical examination after accident (par. 3) 2172 794. Payment to dependents (par. 4) 2172 795. Review of weekly payments (par. 12) 2172 T). Arbitration 2173 795a. Text of statutory provisions 2173 796. Effect of these provisions ; generally 2175 E. Act of 1900 2176 797. Effect of this statute 2176 CHAPTER XLI. STATUTES IMPOSING VARIOUS SPECIFIC DUTIES UPON EMPLOYERS. 799. Servant's right to sue for injuries caused by a breach of a stat- utory duty; generally 2177 800. Same subject continued; provision of special remedy for viola- tion of duty; effect of 2180 801. Employer not rendered an insurer of his servant's safety by the imposition of a specific duty 2187 802. Construction of statutes imposing specific duties on employers. . 2187 CHAPTER XLII. CAUSATION. 802a. Introductory 2205 A. General principles 2208 803. Necessity of proving that the neyiijii'iicc altepod was the cause of the injury 2208 804. ■ — and also the pj'oximate cause of the injury 2210 805. Provinces of court and jury 2224 B. Intervening causes 2226 800. Generally 2226 807. Operation of nonresponsible agencies 2227 808. Nonculpable acts of responsible actors 2227 CONTENTS. xlii 809. Culpable acts of responsible actors; negligence of coservants. . 2229 810. Same subject continued; negligence of injured servant himself.. 2234 811. Master liable where his own negligence intervenes, as a proxi- mate cause, between a delinquent coservant's negligence and the injury 224'i 812. - — or between the negligence of the plaintiil himself and the in- jury 2245 C. CONOURKENT CAUSES 2246 813. Generally 2246 814. Master liable where his own antecedent negligence and a subse- quent delinquency of a coservant are both efficient causes of the injury 2248 a. Generally 2248 6. Illustrative cases 2252 815. Master liable where he or his vice principal directed the details of the work 2253 CHAPTER XLIII. EVIDENCE. 816. Introductory 2264 A . Admissibility of evidence .• 2264 817. Relevancy to the pleadings 2264 818. Materiality 2268 819. Competency; generally 2268 820. Condition of the given instrumentality before the accident 2271 a. Condition; generally 2271 6. Nonoccurrence of accidents 2272 c. Occurrence of accidents 2274 821. Condition of the given instrumentalitj' after the accident 2275 822. Condition of the given instrumentality both before and after the accident 2276 823. Condition of parts of the plant other than that which caused injury 2276 a. Generally 2276 6. Nonocurrence of accidents 2278 c. Occurrence of accidents 2278 824. Alterations in the plant or system after the accident; evidential import of 2278 825. Habitual course of conduct 2280 826. Employer's insuring himself against injuries to servants 2280 827. Models and photographs 2281 828. Best and secondary evidence 2281 829. Statements, admissions, and declarations 2281 a. By other employees 2281 6. By the injured servant himself 2283 c. By the employer 2284 830. Opinions as evidence 2284 a. Not admissible 2284 i>. Admissible , 2286 M. it S. Sig. i\% 1 CONTENTS. 831. Judicial notice 2292 B. Burden of proof with respect to the employer's negligence 2293 832. Burden of proving negligence rests on the servant 229:! 833. Negligence not inferable from the mere occurrence of an accident 2298 834. Res ipsa loquitur 2302 835. Action not maintainable where no specific evidence of fault is cflfered 2307 836. Burden of proving that the injury -was caused by the master's negligence rests on the servant 2310 837. No action maintainable where cause of accident is merelj' con- jectural 23 14 838. Shifting of the burden of proof 2320 839. Burden of proof, as affected by express statutory provisions... 2321 o. Statutes not exclusively applicable to employees 2321 6. Statutes enacted expressly for the benefit of employees 2322 C. Burden of proof with bespect to defenses 2323 840. Generally 2323 841. Burden of proof with respect to the assumption of the risk 2323 a. Ordinary risks 2323 h. Extraordinary risks 2334 842. Burden of proof as to servant's contributory negligence 2326 843. Same subject continued; actions under statutes 2327 o. Statutes which simply extend the common-law liability of the master 2329 6. Statutes in whicb the right of action is made conditional upon the servant's freedom from negligence 2331 CHAPTER XLIV. PARTIES IN ACTIONS FOE INJUIUES RECEIVED BY SERVANTS. 844. Plaintifi's 2335 845. Defendants ; generally 2336 846. Liability of the state to its employees 2336 847. Municipal corporations 2338 848. Receivers; common \a.w actions 2339 848a. Receivers; actions imder statute for the benefit of railway em- ployees 2341 849. Fellow servants 2348 849a. Joinder of negligent coemployees and mastei- as parties defend- ant 2349 OTIAPTER XLV Pi,KADTlS-(^ AND PRACTICE. A. Generally 2350 850. Jurisdiction 2350 850a. Nonsuit, taken after reversal — laAv of the case 2351 851. Matters not open for argument by counsel 2352 852. Questions not open for consideration on appeal 2355 CONTENTS. 11 B. Pleading 2353 853. Scope of subtitle 2353 854. Complaint; sufficiency, generally 2353 855. Sufficiency considered with relation to the doctrine of assump- tion of risks 2355 855a. — with relation to the doctrine of coservice 2355 856. Averment of the master's knowledge of the dangerous conditions 2357 a. Generally 2357 h. Doctrine that knowledge must be expressly charged 2358 c. Doctrine that an express allegation of knowledge is not nec- essary 2359 857. Averment of the servant's ignorance of the dangerous conditions 2362 a. Generally 2362 6. Doctrine that a complaint not containing an averment of ig- norance is bad 2362 c. Doctrine that a complaint not containing an averment of ig- norance is good 2364 d. Eflect of an averment that tlie servant was not negligent. . 2365 858. Averment of the servant's freedom from contributory negligence 2368 859. Necessary correspondence between the allegata and probata. .. . 2369 860. Redundancy 2370 861. Duplicity 2372 862. Repugnancy 2372 863. Deiiniteness 2372 864. Plea; generally 2375 C. FujsrcTIO^'^s of court and jury 2376 865. Questions of law and fact 2376 a. Sufficiency of evidence to establish a. material issue 2376 6. Facts or conclusions therefrom disputable 2377 0. Pacts and conclusions not disputable 2380 866. Instructions 2381 867. Verdicts 2383 CHAPTEE XLVI. CONFLICT OF LAWS. A. Where the effect of a statute is not involved 2403 868. Conflict of laws, as between the courts of two states 2403 869. — as between Federal and state courts 2405 B. Where the effect of a statute is involved 2406 870. Conflict of laws as between the courts of two of the United States 2406 a. Injury received in another state 2406 6. Injury received in state where action is brought 24 lO 871. — as between Federal and state courts 24 10 872. — as between Federal and foreign courts 2412 873. Lex fori controlling, where statute affects merely the remedial procedure 2413 874. Presumptions as to the law prevailing in other states 2414 lii CONTENTS. CHAPTEK XLVII. K.MPLOYER'S LIABILITY UNDER THE CIVIL LAW AND SYSTEMS FOUNDED THEREON. 875. Scope of cliapler 2410 A. Duties op employers to their servants 2417 876. Generally 2417 877. Duty of employer as to appliances and place of work 241S 878. — as to methods of work 24:^1 879. — as to rules and regulations 242 J 880. — as to tile employment of competent servants 2421 881. — as to instruction and warning 242] 882. Duty to save life of imperiled servant 2422 883. Assurance of safety 2422 884. Liability to servants working outside tlic scope of their employ- ment 2423 885. Obligations of an employer not owed to volunteers 2423 880. Causation 2423 B. Defenses available to employees 2423 887. Assumption of risks 242;i 888. Volenti non fit injuria 2423 889. Contributory negligence 2424 890. Common emploj'ment 2420 u. Scotland 2420 6. France 2427 c. Italy and Switzerland 2427 d. Germany and Austria 2427 e. Quebec 2427 For Table "of Cases Cited, see end of Volume II. (For Contents of Volume 111. see that Volume.) MASTER AND SERVANT. CHAPTEE I. GENERAL PRINCIPLES BY WHICH THE EXTENT OF THE MASTER'S LlABILITl' IS DETERMINED. 1. Introductory statement. A. Mastbk's liability deteemtned with keference to the risks which are AND ARE NOT ASSUMED BY THE SERVANT. 2. Risks resulting from the master's negligence are not assumed by the servant. 3. Risks not resulting from the master's negligence are assumed by the servant. 4. Rationale of these two complementary principles. 5. Injuries due to known risks not generally actionable, even when they re- sult from the master's negligence. B. Analysis or the master's duties. 6. General statement. 7. Duty to see that the inorganic instrumentalities affe suitable, both as respects quality and quantity. 8. Duty to see that the organic instrumentalities are fitted for their func- tions and adequate in number. a. Servants. 6. Animals. 9. Duty to see that the instrumentalities are so used that the servants will not be exposed to unnecessary dangers. C. Limits of thf, master's duty to protect the servant. 10. JMaster liable for his personal negligence, of whatever kind it may be. 11. Master who does not exercise personal supervision, not liable for the manner in which the details of the work are carried out. 12. ^Master not liable for injuries caused by abnormal courMtions of which he has no notice, actual or constructive. 13. Extent of a master's duty to protect a, servant against casualties not due to his negligence. 1. Introductory statement. — The doctrines whicli define tlie extent of a servant's riglit to recover damages for personal injuries received in the course of his employment represent, broadly speaking, the re- sults of a compromise between the principle that a servant agrees to assume all the risks incident to the work undertaken by him, and the principle that a master is answerable for the consequences of any neg- ligent acts which may be committed by himself or his agents. In the last analysis, therefore, every problem in the law of employeis' liability consists essentially in the determination of the question Vol. I. M. & S.— 1. 1 2 MASTER AND SERVANT. [chap. I. ■whether the facts under review shall be controlled by the one or by the other of these principles.-' The remarkable coniiict of opinion disclosed by the decisions is due, in the main, to three causes. In the first place, no criteria which are at once reasonably precise and universally accepted are available for the purpose of iixing the boundary line between the re- spective territories of the t-wo antagonistic elements from the intc^r- action of which this branch of law has been developed. In many in- stances, it should be observed, the divergence of views, so far as it arises from this circumstance, appears to be even greater than it ac- tually is, owing to the fact that "the language of courts in the opin- ions delivered is sometimes shaded by the facts in the particular case then under consideration, and thus may sometimes give rise to an ap- parent difference in the rules applied, when none really exists."^ In the second place, the difficulty of determining to which of two or more recognized rules the rights of the parties ought, in any given in- stance, to be referred, is unquestionably greater in this than in any other class of cases. In this connection, the numerous dissenting opinions in the reports, and the reasons assigned for the conclusions arrived at, are very instructive.^ The third, and perhaps the most prolific, source of uncertainty and discrepancy is the accident of liti- 'In the more general statements of 'Texas d P. R. Co. v. Barrett (1895) doctrine these principles are regularly 14 C. C. A. 373, 30 U. S. App. 196, 67 mentioned together. The following Ted. 214. passage from an oft-cited case is one of ^ See, for example, such a case as many hundreds of the same tenor which Thomas v. Missouri P. R. Co. (1891) might be quoted: "While it is true, 109 Mo. 187, 18 S. W. 980. The opin- on the one hand, that a workman or ion of the majority of the court pro- servant, on entering into an employ- ceeded on the theory that a switchman ment, by implication agrees that he at a junction where foreign cars with will undertake the ordinary risks inci- all kinds of couplings are continually dent to the service in which he is to be being received must be taken to have engaged, among which is the negligence entered and continued in the service of other servants employed in similar with the understanding that the perils services by the same master, it is also arising from the difference between the true, on the other hand, that the em- couplings of any two cars which he is ployer or master impliedly contracts called on to handle are such as he must that he will use due care in engaging provide against by the exercise of care the services of those who are reason- appropriate to the circumstances. Bar- ably fit and competent for the perform- clay, J., dissented on the ground that, ance of their respective duties in the as the switchman could not make the common service, and will also take due coupling without placing a part, at precaution to adopt and use such ma- least, of his body between the cars, it chinery, apparatus, tools, appliances, made no difference to him, in contem- and means as are suitable and proper plation of law, whether the action of for the prosecution of the business in the cars in closing on him was ascrib- which his servants are engaged, with able to a defective condition of the ap- a, reasonable degree of safety to life and pliances, or to faults in their original socuritv against injury." Snow v. construction, and that the true ques- Housaionic R. Co. (1364) 8 AUeii, 441, tion was whether the machinery, as a 85 Am, Dec. 720, whole, was reasonably safe, and whether §1] GENERAL PRINCIPLES. gation, from which it resulted that, in the earliest cases in which 1;he extent of a master's responsibility was investigated, the questions pre- sented were discussed from the standpoint of the servant's assump- tion of the risks of the employment, and not from that of the mastei''s duty to protect the servant against those risks. The doctrines enun- ciated under such circumstances were such as naturally tended to em- phasize the disabilities of the servant, rather than the obligations of the master, and the subsequent evolution of the law has consisted es- sentially in a process of defining and explaining the qualifications to which the sweeping general rules which were originally laid down are subject. Under any circumstances such a process must inevitably produce many inconsistent decisions and unsatisfactory distinctions, and in the present instance it has resulted in a doctrinal confusion even worse than usual, owing to the fact that it has been carried on simultaneoiisly in a large number of separate states, and the ques- tion how far the various proposed limitations of principles should be admitted has been answered in many different ways.* The outcome of the juristic compromise which has been effected along the lines indicated in the foregoing remarks is to be seen in the three fundamental principles which are stated in the following sections.® ordinary care had been iised to have it so. So far as this conclusion might be modified by the fact that the servant knew of the danger, the learned judge was of opinion that the evidence left the fact of such knowledge an open question, upon which the verdict of a, jury was conclusive. * The chaotic condition to which the law has been reduced by the operation of these causes is shown more particu- larly by the oases collected in chapters iii.-vm., post. ° The earliest case in which the no- tional and chronological relation of these principles is adverted to seems to be Potts V. Plunlcett (1859) 9 Ir. C. L. Rep. 290, where Lefroy, Ch. J., after remarking that in Priestley v. Fowler (1837) 3 Mees. & W. 1, Murph. & H. 305, 1 Jur. 987, it was laid down, in substance, that a master is not respon- sible for injuries occurring to his serv- ant in the course of his employment generally, though being a result of it, because the servant is supposed to un- dertake the duty for which he is paid, subject to all the risks which may oc- cur during its continuance, proceeded thus: "In process of time it came to be discussed whether that proposition was to be adopted in those unqualified terms, and certain qualifications were then superadded to the rule so laid down, — as, for instance, where the in- jury is occasioned to the servant by that of which the master might be prop- erly deemed to have been the cause, namely, when the injury arises, not from a merely accidental occurrence in the course of the servant's employ- ment, but from gross negligence on the part of the master in respect of his duty towards the servant; and this qualification which was so engrafted on the original rule was this, — that a master should not employ his servant in a work which the master is aware is of such a nature as that no man could engage in it without incurring liability to the injury complained of. That appears to be a rational qualifica- tion of the rule which exempts the mas- ter from liability for injuries arising from accidents to those in his employ- ment, and involves the existence of knowledge on the part of the master of the dangerous nature of the employ- ment. But there is a further class of cases, in which it would appear that there was engrafted on this latter qualification somewhat of a limitation, MASTER AND SERVANT. [chap. I. A. Master's liability deteemined with refeeea^oe to the risks WHICH AEE AND ARE NOT ASSUiMED BY THE SEEVANT 2. Risks resulting from the master's negligence are not assumed by the servant. — A proposition which has so frequently been enunciated by the courts as to have become axiomatic is that, prima facie, a serv- ant does not assume any risks which may be obviated by the exerci.se of reasonable care on the master's part. In other Avords, the ab- normal, unusual, or extraordinary risks which the servant does not assume as being incidental to the work undertaken by him are those which would not have existed if the master had fulfilled his contract- ual duties.' Occasionally the inference has been drawn tliat there was negli- namely, that if the cause producing the injury be equally known and equally palpable to the person employed as to the master, then the servant cannot complain, for it may be said that he went into the danger with his ej'es open. This, then, appears to me to have been the course of the decisions : First, laying down the general princi- ple as to the master's nonliability; next, engrafting a qualification upon that principle; and, lastly, introducing a sort of limitation of that qualifica- tion." ' The cases in which this doctrine is stated under its various aspects are col- lected in §§ 270 et seq., post, and need not be reviewed here in detail. This qualification of the general principle that a servant assumes all the risks ordinarily incident to his em- ployment was more than half conceded in Priestley v. Fowler (1837) 3 Mees. & W. 1, Murph. & H. 305, 1 Jur. 987. In that case, as has been pointed out in Hough V. Texas & P. R. Go. (1879) 100 U. S. 213, 25 L. ed. 612, the question whether the risk of the master's negli- gence was one of the risks assumed by a servant was not involved, or, at all events, was not determined in that case. The decision was placed by Lord Abinger partly upon the ground that, in the "sort of employment . . described in the declaration, . . . the plaintiff must have known as well as his master and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely;" and al- though the court declared that it was not called upon to decide how far knowledge, upon the part of the mas- ter, of vices or imperfections in the carriage used by the servant injured, would make him liable, it was said: "He (the master) is, no doubt, bound to provide for the safety of the servant in the course of his employment, to the best of his judgment, information, and belief." In Chief Justice Shaw's fa- mous opinion in Fancell v. Boston, £ W. R. Co. (1842) 4 Met. 49, 38 Am. Dec. 339, language of a somewhat similar tenor is found. But a frank and unre- served acceptance of the simple notion that the existence of certain duties on the master's part created an exception to the doctrine of the servant's as- sumption of the risks of the employ- ment seems to have been reached with some hesitation. In Seymour v. Mad- dox (1851) 16 Q. B. 326, 20 L. J. Q. B. N. S. 327, 15 Jur. 723, a chorus singer injured by falling through a hole in the fioor of a passage in a theatre, ow- ing to the want of light and fencing, was held unable to recover from the proprietor of the building, the court holding that a declaration setting out these facts showed no cause of action. This decision turns upon a point of technical pleading, and is therefore of a narrow scope; but, even when this fact is taken into account, it cannot be considered to be in harmony with later cases, — especially in the United States. See the criticisms in Ryan v. Fowler (1862) 24 N. Y. 410, 82 Am. Dec. 315. Language indicating a similar trend of judicial opinion is found in the follow- ing cases: Dynen v. Leach (1857) 26 L. J. Exeh. N. S. 221; Riley v. Baxen- dale (1861) 6 Hurlst. & N. 445, 30 L. J. Exeh. N. S. 87, 9 Week. Rep. 347; Clarke v. Holmes (1862) 7 Hurlst. & i 31 GENERAL PRllsrCIPLEg. 5 genee on the master's part, for the reason that the risk Was an extra- ordinary one.- But this succession of ideas, considered as suggest- ive of the lines on which the inquiry into the rights and liabilities of the parties may be conducted, is open to objections similar to those which may be urged against the converse theory, that the exercise of due care may be inferred from the fact that the risk was an ordinary one. See next section. 3. Risks not resulting from the master's negligence ai'e assumed by the servant. — A second proposition, which is also beyond the reach of controversy, is that every risk which an employment still involves after a master has done everything that he is bound to do for the pur- pose of securing the safety of his sers'ants is assumed, as a matter of law, by each of those servants. This doctrine prevents recovery unless evidence is introduced which warrants the inference that the injured person was incapable of appreciating the risk from which liis injury resulted.^ According to the standpoint taken, such evidence may be regarded either as tending to show that one of the essential ele- ments of an assumption or acceptance — viz., Ivuowlcdge — is lacking, or that the master exposed the servant to risks which he did not comprehend, — a situation which manifestly implies that the master did not fulfil all his duties (see chapters vii. and xvi.^ post), — and which, if it is established, indicates that the case is governed by the principle enunciated in the preceding section. The risks which are thus considered to have been assumed are those which are commonly described as "ordinary." See §§ 259 et scq. When stated with reference to the general rule Avhich throws on the servant the burden of proving negligence on the master's part (chapter xliii. B), this principle assumes the form that, in the ab- sence of definite proof of such negligence, an accident is regarded as one of the hazards of the employment of which the servant takes the risk.^ Sometimes we find the courts deducing the conclusion that there was no negligence on the master's part from the consideration that the risk in question was an "ordinary one."^ This logical succession N. 937, 31 L. J. Excli. N. S. 350, 8 Jur. ^ For caises wliich explicitly state or N. R. 992, 10 Week. Rep. 405; Mellors recognize this doctrine, see §§ 259 et v., Shan- (1861) 1 B. & S. 437,30 L.J. Q. seq. Vj N S 333, 7 Jur. N. S. 845, !l Week. '' Mcnsch v. Pennsylvania R. Co. Rep. 748; McDermott v. Pacific R. Co. (1892) 150 Pa. 598, 17 L. R. A. 450, 25 (1860) 30 Mo. 115; Buzzell v. Laconia Atl. 31. Mfq Co (1801) 48 Me. 113, 77 Am. 'Dartmouth Spinning Co. v. Achord Dec. 212. (1889) 84 Ga. 14, 6 L. R. A. 190, 10 S. -Colorado Midland R. Co. v. Naylon E. 449; Murphy v. Greeley (1888) 146 (1892) 17 Colo. 501, 30 Pac. 249. Mass. 196, 15 N. E. 654; Jackson v. 6 ilASTEIf, AND SERVANl*. [cha*. t. of ideas is not unnaturally suggested when the evidence is such as to bring into special prominence the conception that the conditions whicli caused the injury are met with so frequently in the given em- ployment that they may reasonably be regarded as normal, so far as the servant is concerned. See § 261, post. In many instances, how- ever, the servant will inevitably be prejudiced to some extent by this mode of conducting the investigation, and it seems to be decidedly preferable to 'obtain a definite starting point by treating the existence or absence of culpability on the master's part as the essential point to be determined at the outset. 4. Eationale of these two complementary principles. — The distinc- tion thus made between the risks which are and the risks which are not created by the master's negligence may be referred directly to the conception that the fact of the defendant's being the master of the plaintiff is not a reason for excluding the operation of the general principle of jurisprudence which is embodied in the maxim. Culpa tenet auctorcs suos. But it is also sustainable on the more special groimd that, in vieM' of the circumstances attending the contractual relations of the parties, the servant may reasonably be ]3resumed to foresee that he will be exposed to risks of the latter class, but ought not to be charged with the consequences of an anticipation that risks of the former class will be encountered. There is, accordingly, no sufficient ground upon Avhich the existence of an imi^lied agreement not to hold the master responsible for the consequences of his defaults can properly be predicated. This conception is fully developed in a later chapter. See §§ 260, 272. 5. Injuries due to known risks not generally actionable, even when they result from the master's negligence. — The presumed knowledge or ignorance of the servant being the essential basis upon which rest the two principles by which he is charged with the acceptance of one class of risks incident to his employment, and the nonacceptance of another class, there is an obvious logical propriety in taking the posi- tion that in any case in which the presumption of ignorance which is entertained with regard to risks caused by the master's negligence is rebutted by positive evidence which establishes knowledge, actual or constrxictive, of the particular peril which caused the injury, it must, at the very least, be a qiiestion for the jury whether the servant did not, by continuing to expose himself to the peril thus known to him, show his intention to take upon himself the responsibility for any ac- cident which might happen to him by reason of its existence, or, in Missouri p. R. Co. (1891) 104 Mo. 448, R. Go. (1891) 109 Mo. 187, 18 S. W. 16 S. W. 416; Thomas v. Missouri P. 980, S 6] GENERAL PUlNCItLES. 7 other words, to waive any right of action which, apart from such knowledge, he would have possessed. This position possibly repre- sents the doctrine which, since the recent decisions as to the effect of the maxim, Volenti von fit injuria, prevails in England. See chap- ter XX., post J and § 276. But there does not appear to have been any deliberate and formal announcement of such a doctrine, in a case where the question of a contractual assumption of the risk was ex- plicitly presented. The doctrine applied in the older English cases and in all the American cases up to tlie present time, with a few possible unimpor- tant exceptions, is that, in the case of all adult servants except sea- men, the action must be declared not to be maintainable, as a matter of law, if the evidence leaves no reasonable doubt that the servant comprehended the abnormal risk which caused his injury. See §§ 273 et seq. B. Analysis of the master's duties. 6. General statement. — From the foregoing sections it is abun- dantly manifest that although, as a mere matter of historical develop- ment, the law of employer's liability must be regarded as being es- sentially based on the conception of the servant's assumption of some rislvs and his nonassumption of others, the ultimate question to be first determined in every case is whether the master is guilty of a breach of duty to the servant who brings the action. The cases bear- ing upon that question, therefore, will be first considered. It is well settled that the duties of a master to his servants arise out of the contract of employment, and are limited to those obligations which, under that contract, he has impliedly agreed to perform.^ ^Wilson V. Merry (1869) L. R. 1 H. O'Neill v. Chicago, B. I. & P. R. Co. L. Sc. App. Cas. 326, 19 L. T. N. S. (1901; Neb.) 86 N. W. 1098. "The 30; Smith v. Baker [1891] A. C. 325, case [of Priestley v. Foicler (1837) 3 362, 60 L. J. Q. B. N. S. 683, 65 L. T. Mees. & W. 1, Murph. & H. 305, 1 Jur. N. S. 467, 55 J. P. 660, 40 Week. Rep. 987], might have been rested upon the 392, per Lord Herschell; Williams v. principle that there was no contract on Birmingham Battery & Metal Go. the part of the master safely to carry [1899] 2 Q. B. 338, 68 L. J. Q. B. N. S. the servant, and that, where there is no 918; Farircll v. Boston & W. R. Corp. contract, there is no breach of duty for (1841) 4 Met. 49, 38 Am. Dee. 339; which an action will lie." Lawson, J., Slater v. Jewett (1881) 85 N. Y. 61, 73, in noey v. Duilin & B. Junction R. Go. 39 Am. Rep. 627; Kain v. Smith (1870) Ir. Rep. 5 C. L. 206, 18 Week. (1882) 89 N. Y. 375; Larmore x. Crown Rep. 930. "Culpable negligence on the Point Iron Co. (1886) 101 N. Y. 391, part of one person as toward another 54 Am. Rep. 718, 4 N. E. 752; Sullivan always involves a breach of duty on V. India Mfg. Co. (1873) 113 Mass. the part of the former as toward the 396, 398; Fifield v. Northern R. Go. latter. Where there is no breach of (1860) 42 N. H. 225; Harrison v. Gen- duty, there can be no culpable negli- tral R. Co. (1865) 31 N. J. L. 293; gence, and it is only for negligence of 8 MASTER AND SERVANT. [chap. i. Stated in their most general funn, these duties are: (1) To see that suitable inBtrumcutalitics are provided; (2) 1x) see tliat those instru- mentalities are safely lised. Both on principle and authority is it clear that, in a hroad sense, servants, as well as machinery, apparatus, premises, etc., may be de- scribed as instrumentalities, appliances, or agencies of the master's business.^ But the qualitative attributes of the agencies of the mas- ter's business, which are animate and organic, are in some respects sufiiciently unlike those of the agencies which are inanimate and in- organic to entail some corresponding difference between the courses of conduct which are obligatory, according as one or other of these classes of agencies may be the subject-matter of the duty of seeing that they are in proper condition for the performance of the functions assigned to them. For this reason it has been considered advisable to discuss separately the cases relating to each of these kinds of agen- cies. See the remarks at the commencement of chapter xiii., post. 7. Duty to see that the inorganic instrumentalities are suitable both as respects quality and quantity. — The plant which forms the sub- ject-matter of this dutj' is usually treated as being divisible into two parts: (1) The place in which the work is done; (2) the machinery, tools, implements, etc., by which the work is done. But, as a basis for a general classification of the cases, this method of division is open to two objections. First, the accidents are, in niany instances, of such a nature that the instrumentalities which, as a mere matter of lexicographical definition, belong to the second of these categories, must, in a logical point of view, be regarded as be- ing, ad hanc vicein, a part of the entirety described as the place of work, rather than as agencies for doing the work.^ Secondly, it is a culpable character that any person ^ See Johnson v. Ashland Water Co. can be held responsible in law." Rush (1890) 77 Wis. 51, 45 N. W. 807; Tex- V. Missouri P. R. Co. (1887) 36 Kan. as & P. R. Co. v. Rogers (1893) 6 C. 129, 12 Pac. 582. It would seam, how- C. A. 403, 13 U. S. App. 547, 57 Fed. ever, that under the strict forms of 378; Thorpe v. Missouri P. R. Go. common-law pleading this theory is not (1880) 89 Mo. 650, 58 Am. Rep. 120, carried to its logical conclusions, for, 2 S. W. 3. in Riley v. Baxendale (1861) Hurlst. 'See, for example, such eases usEgan & N. 44.5, 30 L. J. Exch. N. S. 87, 9 v. Dry Dock, E. B. & B. R. Co. (1896) Week. Rep. 347, it was held that the 12 App. Div. 556, 42 N. Y. Supp. 188, duty of the master had been improper- where a boiler exploded and injured a ly declared on as a contract. The dif- teamster, or the cases in which a ma- ficulty pointed out by Pollock, C. B., chine is fractured and the pieces are was that this form of pleading ren- thus converted into dangerous projec- dered it impossible for the defendant to tiles. McAlpine v. Laydon (1896) 115 demur, because it was possible that Cal. 68, 40 Pac. 865 ; Ball v. Emersnn- tbere might have been such a contract Htevens Mfg. Co. (1900) 94 Me. 445, in point of fact, whereas, if the obliga- 47 Atl. 924; Rawley v. Golliau (1892) tion had been alleged as a simple duty, 90 Mich. 31, 51 N. W. 350; Dempsey v. the defendant might have demurred. /8ot(?yer (1901) 95 Me. 295, 49 Atl. 1035. § 7] GENERAL PUINCIPLES. 9 often difficult, if not impossible, to say with confidence wliich of these two conceptions is appropriate to the facts in evidence. Thus, a loco- motive, which is clearly a piece of machinery so far as tlie engineer and firemen are concerned, is jnst as clearly something which makes the place of work unsafe as regards a trackman who is run down by it. Under the circumstances here suggested, the duties of the in- jured person have no connection with the instrumentality which causes his injury. But it is obvious that the same ambiguous situa- tion may also present itself where his duties have such a connection. For example, the same machine may, as regards the operation, be con- ceived of merely as a heavy object which, if not properly secured, is likely to fall on him, or as an apparatus which, if defective in certain ways, may injure him while it is performing the functions for which it is designed. Compare, also, the cases referred to in the last note. These considerations suggest the advisability of basing the classi- fication of the cases upon the principles which are applicable to all in- organic instrumentalities alike, rather than on an assumed essential distinction between tlie place of work and the appliances by which tlie work is done. The general discussion of the master's duties in chap- ters II. -VII. has therefore been conducted along the lines tlius indi- cated. But in chapter viii. this discussion has been supplemented by collating the authorities with special reference to the concrete facts in evidence, for the purpose of bringing out with greater distinctness the effect of the principles involved, and tlie remarkably conflicting views which the different courts hold with respect to the liability of the master for injuries due to the same, or virtually the same, conditions. Suitable instrumentalities are obviously not provided in any rea- sonable sense of the word, unless they are not only suitable when they are first brought into use, but also maintained in a suitable condition as long as they remain in use. Hence, it has uniformly been held that the duty now under review is continuous, and requires that the various instrumentalities should be kept up to the obligatory standard of safety by proper repairs, or by replacing worn-out or otherwise de- fective pai'ts. See chapters ix.^ xi.^ and xii.^ post. It is clear that neither the duty of original supply, nor that of sub- sequent maintenance, can be adequately performed without subject- ing the instrumentalities to a more or less minute examination for tlie purpose of discovering such defects as may not be obvious and pal- pable. Hence, the duty of active inspection may be, and usually is, regarded as incidental to, and deducible from, those duties. But from a merely logical point of view it may evidently be considered 10 MASTER AND SERVANT. [chap. t. as one wliich arises out of the general duty to see that the business is conducted on a safe system. See chapter xv., post. 8, Duty to see that the organic instrumentalities are fitted for their functions and adequate in number. — The subject-matter of this duty consists of (1) the servants themselves; (2) such animals as may be used as a part of the business organism. a. Servants. — (See also chapter xiii., post.) The duty of seeing that each servant is competent for his position is predicated witli a view, both to his own security, and to the security of his fellow servants. Under both of these aspects the duty suggests, as an incidental ob- ligation, that of giving instructions to the servant in any case in which his ignorance of the proper methods of work is likely to be a source of danger either to himself or to other employees. But, like other incidental obligations, this may also be viewed as one of those which appertain to the main duty to see that the instrumentalities are safely used. See next section. It should be observed, moreover, that, in so far as the obligation to instruct is concerned merely with the safety of the person to whom the instruction is to be given, it may also be deduced from the consid- eration that the imparting of information which enables a servant to appreciate fully the risks of the employment will, at the very least, entitle the master to go to the jury upon the question whether the ac- tion is not barred by one or other of the three defenses which are based upon the servant's knowledge, or, as most of the authorities hold, will absolutely prevent recovery, as a matter of law. In this in- stance, accordingly, the obligation may be viewed as one which is predicated either for the reason that an uninstructed servant is not competent for his position, or for the reason that, by discharging it, the master shifts to the servant the responsibility for such injuries as may result from the existence of the risks which are the subject-mat- ter of the instructions. The continuous nature of this duty is not less indisputable than in the case of inorganic instrumentalities. But, owing to the different character of the instrumentality to be dealt with, the performance of the duty must be effected in a different way. An incompetent serv- ant cannot be convertecl into a competent one in the same way as a de- fective apparatus can be converted into a sound one, though perhaps it is theoretically possible to argue that, where a servant is hired for a definite period, and during that period his physical or mental fac- ulties become so far impaired by sickness that his condition becomes i 9] General principles. U a source of abnormal danger to liimself and to his fellow workmen, the proper course for the master to pursue is to suspend him from his functions until his health has been restored, and during such suspen- sion to furnish him with suitable medical attendance. When the in- competency of a servant is discovered after he has entered the em- ployment, the only remedies usually available are to give proper in- structions, or to dismiss him. The duty associated with the former of these remedies has been already adverted to. If the latter remedy is applied, the master will ordinarily proceed to hire a new servant, — a situation which obviously charges him with the same obligations as those to which he is subject when he is hiring the original staff of assistants. The conception that suitable servants are to be provided may rea- sonably be regarded as involving the conception that they shall not only be competent when considered as individual units in the business organism, but also sufficient in number for the proper performance of the work. But it is clear that this duty, like those of inspection and instruction, may also be deduced from the duty to conduct the busi- ness 'on a safe system. See chapter xv.^ post. b. Animals. — (See also chapter xiv.^ post.) The methods by which dangers due to the viciousness of animals, or their physical in- capacity for the work to be done, or tlie inadequacy of their number for that work, are customarily remedied, seem to bear a closer anal- ogy to those which are applied in the case of dangers created by unfit servants, than to those which are produced by inorganic instrumental- ities. In both instances there is practically no resource except to substitute a suitable instrumentality for the unsuitable one. For this reason the duty predicated with respect to the use of animals seems to be, for the purposes of classification, more appropriately as- sociated with the duty of hiring suitable servants than with the duty of furnishing suitable machinery, etc. 9. Duty to see that the instrumentalities are so used that the servants will not be exposed to unnecessary dangers. — The distinctive and characteristic elements of the duty to see that the instrumentalities are safely used are obviously: (1) General orders issued for the guidance of the servants. (2) Particular orders with reference to the details of the work during its progress. As regards general orders, the master may be conceived to be sub- ject to three obligations: (1) To frame suitable rules and regula- tions. (2) To bring those rules and regulations to the knowledge of the servants for whose benefit they are framed. (3) To carry out IS MASTER AND SERVANT. LoiiaP. 1. those rules and regulations in such a manner that the objects for which they are framed may be attained. But it is obvious that, in practice, the responsibility of the master in respect to the second and tliird of these obligations — more espe- cially the third — is considerably diminished by the operation of the doctrine of common employment. See chapters xxvi.-xxxii.^ post. A similar remark is applicable to tlie duty of the master in respect to particular orders, except in those cases in which he is himself su- perintending the work ; for, according to the theory accepted in most jurisdictions, a servant cannot recover for injuries caused by compli- ance with the directions of a superior servant who is not a vice princi- pal. See chapter xxviii., post. Under this head, also, as already mentioned, may be classed, as subsidiary obligations, the duties of inspection, of imparting neces- sary information, and of seeing that the work is not undertaken with an inadequate number of servants. Frequently, indeed, the methods by which the proper performance of these duties shall be secured are a matter specifically provided for in the rules and regulations framed by the master. Under one of its aspects the duty of imparting information is al- most purely administrative, — that is to say, where its subject-matter is a transitory risk arising out of the details of the work. And here, again, it is proper to remark that the breach of the duty of warning servants as to such risks will, in most jurisdictions, seldom constitute a cause of action, for the reason that in practice it is ordinarily dis- charged by employees who are not vice principals. C. Limits of the master's duty to protect the seevaitt. 10. Master liable for his personal negligence, of whatever kind it may be. — There is no exception to the rule that the violation by the master himself of any of the duties enumerated in the foregoing sec- tions constitutes a cause of action in favor of a servant who is injured thereby.-' A prima facie right to indemnity exists, therefore, ' "For his own personal negligence a suits to the servant from the direct act master was always liable, and still is or negligence of the master, — as, where liable, at common law, both to his own he is personally present, superintend- workmen and to the general public who ing the work and giving orders, — he is come upon his premises at his invita- answerable for the damages to the same tion on business in which he is con- extent as if the relation of master and cerned." Bowen, L. J., in Thomas v. servant did not exist." Lorentz v. Roh- Quartermaine (1887) L. R. 18 Q. B. inson (1883) 61 Md. 64. "Whenever Div. 685, 691, 57 L. T. N. S. 537, 35 the injury results from the actual neg- Week. Rep. 555, 50 L. J. Q. B. N. S. ligence or misfeasance of the principal, 340. 51 J. P. 516. "If injury re- he is liable as well in the case of one § 10] GENERAL PRINCIPLES. 13 whether the master's culpability was, under the doctrine prevailing in the jurisdiction where the accident occurred, one appertaining to the perfoiTnance of a duty belonging to the non-delegable class,^ or a mere detail of the work.^ An obvious corollary of this principle is that the defense of com- inon employment is not available where the person whose negligence, caused the injury is a partner of the defendant, as well as a fellow workman of the injured person.* So, also, a corporation is liable for the personal negligence of a di- rector.** of his servants as in any other." Kee- protected by the customary bonnet) ; gan v. Western R. Corp. (1853) 8 N. Bradbury v. Goodwin (1886) 108 Ind. Y. 175, 180, 59 Am. Dec. 476. "The 286, 9 N. E. 302 (negligent construc- doctrine that a. servant on entering the tion of an anchorage to be used in mov- service of an employer takes on him- ing a heavy safe) ; Stevens v. Howl self, as a risk incidental to the service, (1890) 28 Neb. 547, 44 N. W. 865 (de- the cliarce of injury arising from the fcctive scaffold erected under def end- negligence of fellow servants engaged ant's o^vn superintendence) ; Scott v. in the common employment has no ap- Craig (18G2) 24 Se. Sess. Cas. 3d plication in the case of the negligence series, 789 (same facts) ; Sweain v. of an employer. Though the chance of Donahue (1899) 105 Wis. 142, 81 N. injury from the negligence of fellow W. 119 (skid which was being pulled servants may be supposed to enter into out of its bed suddenly became loose the calculation of a servant in under- and swung around and struck the plain- taking the service, it would be too much tiflf, who had not been duly warned by to say that the risk of danger from the the master as to what was going on) ; negligence of a master when engaged Finneghan v. Peters (1861) 2 Sc. Sess. with him in their common work enters Cas. 2d series, 260; Haley v. Case in like manner into his speculation. (1886) 142 Mass. 316, 7 N. E. 877; From a master he is entitled to expect Flynn v. Harlow (1892) 46 N. Y. S. R. the care and attention which the supe- 872, 19 N. Y. Supp. 705 (building con- rior position and presumable sense of tractor subjected floor of scaffold to duty of the latter ought to command." twice the weight it was intended to Ashirorth v. Stanwix (18G1) 3 El. & bear); Wood v. Pitfield (1887) 26 N. El. 701, 7 Jur. N. S. 467, 30 L. J. Q. B. B. 210 (master held liable for a defec- N. S. 183, 4 L. T. N. S. S.t. tive rope). A declaration is not de- ' Roberts v. Smith (1857) 2 Hurlst. murrable which is susceptible of being & N. 213, 3 Jur. N. S. 469, 26 L. J. construed in such a sense that the in- Exch. 319 (master builder directed jury may have been caused by the neg- scaffold to be constructed from poles ligence either of the defendant himself known to be unsound) ; Kaspari v. or of one occupying the position of gen- Marsh (1889) 74 Wis. 562, 43 N. W. eral manager. Macdonald v. Dick 308 (master supervised erection of de- (1874) 34 U. C. Q. B. 623. fective scaffold) ; Sco« V. Omy (1862) ^ Folk v. Sohaeffer (1898) 186 Pa. 24 Sc. Sess. Cas. 3d series, 789, 34 Sc. 253, 40 Atl. 401; Moran v. Harris Sess. Jur. 401 (similar facts); Stan- (1884) 63 Iowa, 390, 19 N. W. 278 wick y. Biiller-Ryan Go. (1896) 93 Wis. (master operated machinery negligent- 430, 67 N. W. 723 (master specially ly). directs the use of a defective stringer * Ashicorth v. Stanioix (1861) 3 El. in a particular place in a scaffold) ; & EI. 700, 7 Jur. N. S. 467, 30 L. J. Q. Mellors v. Shaw (1861) 1 Best & S. B. N. S. 183, 4 L. T. N. S. 85; Webster 437, 30 L. J. Q. B. N. S. 333, 7 Jur. N. v. Foley (1892) 21 Can. S. C. 580; S. 845 (mine owner who was his own Rhoades v. Varney (1898) 91 Me. 222, manager held liable where a large stone 39 Atl. 552. fell from the side of a shaft on a miner ° Han-ison v. Detroit, L. £ 2V. R. Co. while he was ascending a shaft in a (1890) 79 Mich. 409, 7 L. R. A. 623, hoisting cage which was not properly 44 N. W. 1034; Warner v. Erie R. Co. 14 MASTER AND SERVANT. [chap. i. The master cannot, of course, be made liable on the ground of his personal interference in the work, unless, while so interfering, he was guilty of some specific act of negligence, anu that act was an efficient cause of the injury in suit.*"' The right of a servant to recover for injuries caused by positive acts of negligence on the master's part while the work is in progress cannot be defeated by showing that he has frequently done similar acts on previous occasions. The doctrine of assumption of risks has )!'" application to such a case.^ 11. Master who does not exercise personal supervision, not liable for <;he manner in which the details of the work are carried out. — Except in the cases in which the master is himself directing the work in hand, his obligation to protect his servants does not extend to protect- ing them from the transitory risks which are created by the negli- gence of the servants themselves in carrying out the details of that work. In other words, the rule that the master is bound to see that the environment in which a servant performs his duties is kept in a reasonably safe condition is not applicable where that environment becomes unsafe solely through the default of that servant himself, or of his fellow employees. It is obvious that this is merely an alterna- tive way of stating the effect of the doctrines of contributory negli- gence and common employment.-' The limits of the master's respon- sibility in this direction will, therefore, be more appropriately treated in that portion of the treatise in which those defenses are discussed. (Chapters xix., xxvi.— xxxn.) It will be seen, from the cases col- lected in chapter xxxii.^ in v/hich the subject of vice principalship as (1867) 49 Barb. 558^ Reversed, but not fered in the erection of the scaflfoldlng as to this point, in (1868) 39 N. Y. which fell, or the servant whose negli- 468; Texas Mexican It. Co. v. Whit- gence caused the injury was ineompe- more (1883) 58 Tex. 276. In Matthews tent, they must find for the plaintiff). V. Hamilton Powder Co. (1887) 14 ' Gvlf, G. & 8. F. B. Go. v. Brent- Ont. App. Rep. 261, it was held that, ford (1891) 79 Tex. 619, 15 S. W. 561. where a director of a company in- ' The logical connection of ideas is structs the superintendent of the works indicated by the following passage in to have certain machinery repaired, an oft-cited ease: "The obligation of and a servant is injured owing to the a master to provide reasonably safe failure of the superintendent to make places and structures for his servants the repair, the intervention of the di- to work upon does not impose upon him rector in respect to the giving of the the duty ... of keeping a build- order is not such as to take the case ing which they are employed in ereet- out of the general rule that a master is ing in a safe condition at every mo- not liable for the defaults of a. coem- ment of their work, so far as its safe- ployee. ty depends upon the due performance 'Tarrant v. Welt (1856) 18 C. B. of their work by them and their fel- 797, 25 L. J. C. P. N. S. 261, per Jer- lows." Armour v. Hahn (1884) 111 vis, Ch. J. (declaring incorrect an al- U. S. 313, 28 L. ed. 440, 4 Sup. Ct. Rep. temative direction by which the jury 433. were told that if the defendant inter- §§ 12, 13] GENERAL PRINCIPLES. 15 deduced from the character of the act is dealt with, that, under cer- tain circumstances, the master is free from liability for negligence committed by the servants themselves, not only in the use, but even in the selection, preparation, and maintenance, of the instrumentalities. 12. Master not liable for injuries caused by abnormal conditions of which he has no notice, actual or conslruetive. — Another principle which qualifies very largely the responsibility of a master is that no action can be maintained against him for an injury caused by ab- normal risks, unless he knew, or ought, as a reasonably prudent man, to have known, of the existence of those risks. This subject will be fully discussed and developed in chapters x. and xi. 13. Extent of a master's duty to protect a servant against casualties not due to his negligence. — The cases under this head fall into two classes: (1) Those in which the question was whether the master was bound to provide means to lessen, alleviate, or prevent the harm- ful results of such an event as that which caused the injury com- plained of; (2) those in which the point to be determined was wliether, after some catastrophe had actually occurred, he did all that a prudent man could have done to minimize its consequences. As regards the first class, it is well settled that, apart from statute, a master is not required to construct his instrumentalities, or so to arrange the place where his servants work, that they shall be pro- tected from the consequences of a casualty for which he is not respon- sible.i ^ In Jones v. Granite Mills (1878) safety of the servant from the conse- 126 Mass. 84, 30 Am. Rep. 661, it was quence of a. casualty to which his neg- argued that the defendant was negli- ligence does not directly contribute, gent for the reason that he had not The common law gives a remedy to a constx'ucted pi'oper fire escapes. But servant who is injured by the wrongful this contention was rejected. "We or negligent act of the master; the lia- know of no principle of law," said the bility arises upon the doing of the act. court, "by which a person is liable in But the common law goes no further; an action of tort for mere nonfeasance it does not provide a remedy when the by reason of his neglect to provide master is not responsible for the aet, means to obviate or ameliorate the con- on the ground that he has omitted to sequences of the act of God, or mere provide means to avoid its consequen- accident, or the negligence or miscon- ces." In another case arising out of duct of one for whose acts towards the the same accident, Keith v. Granite party suffering he is not responsible. Mills (1878) 126 Mass. 90, 30 Am. Rep. If such a liability could exist it would 666, the plaintiff requested the judge be difficult, if not impossible, to fix any to instruct the jury that it was the limit to it. And we are therefore of duty of the defendant ( 1 ) to provide opinion that it is no part of the duty proper and suitable means of extin- of a master to his servant, employed in guishing fire, (2) proper and suitable a building properly constructed for the ways and means of escape, and (3) of ordinary business carried on within it, giving alarm to its servants in case of in the absence of a statute requirement, fire "^he judge instructed tlie jury to provide means of escape from it, or that it the room in which the plaintiff to have remedial agencies at hand to was at work was a soiitable place, and alleviate the results, or to insure the there were proper and suitable means 10 MASTER AND SERVANT. [chap, l The true doctrine applicable to the second class of cases is, in one of its aspects at least, equally clear. If the conditions which caused the injury supervened suddenly, and were such that the master was not bound to anticipate that they would arise, he cannot be charged with negligence, unless he had notice, actual or constructive, of the danger, at least long enough before the injury was inflicted to have enabled him to form an intelligent opinion as to the means by which the injury might be avoided and to apply the appropriate remedy.^ Compare the cases in chapter ix. with regard to the obligation to rem- edy defective conditions. But there seems to be some divergence of opinion as to the master's liability where the effect of the catastrophe Avas to put the servant in jeopardy for some considerable period of time, and the gravamen of the complaint is that the master did not take proper measures to extricate him. Some cases proceed upon the theory that, when an employee, without fault on the master's part, is placed in a dangerous or painful situation, the master is under uo positive legal duty of exercising all reasonable care and diligence to effect such employee's speedy release. Being in no way responsible for the unfortunate occurrence, the master, it is declared, cannot be said to be guilty of a tort for the reason that he does not promptly take active steps in coming to the rescue. The only duty arising un- der such circumstances is deemed to be one of humanity, and for a breach thereof the law does not impose any liability.^ of extinguishing fire, and the means of of providing means of escape, and is to egress and escape were suitable and be governed by the same principles." proper, and in order and ready for use, ^ Independent Tug Line v. Jacobson the plaintiff could not recover. Com- (1898)84 111. App. 684; United States menting on this instruction, the court Exp. Go. v. McCluskey (1898) 77 111. said that, as applied to the first re- App. 56, citing Chicago, B. & Q. R. Co. quest, it was suificiently favorable to v. Johnson (1882) 103 III. 512. the plaintiff, and proceeded thus: ' Allen v. Hixson (1900) 111 Ga. 460, "Even if it was the duty of the defend- 36 S. E. 810. In Stager v. I'roy Laun- ant, in a case like this, to provide prop- dry Co. (1901) 38 Or. 480, 53 L. R. A. er means ,of extinguishing fire, and to 459, 63 Pac. 645, where a servant sued have the same ready for use, the jury for an injury received by her hand be- have found the duty to have been per- ing caught between the rollers and the formed. Upon the second request, the drum of a mangle, and it was shown instructions were also sufficiently fa- that the injury was aggravated by the vorable to the plaintiff. For the rea- fact that it remained in the machine sons stated in Jones v. Granite Mills, for some time because the managers the presiding judge might properly did not know how to operate the ma- have declined to submit that question chine to release it, but that they did to the jury. . . . The third in- what they could to extricate the plain- struction requested was properly re- tiff, — it was held to be error to instruct fused. It is no part of the master's duty the jury that, if the plaintiff was in to his servants to provide special means fault, and brought the injury on her- of notifying them of a fire or other cas- self, she was still entitled to recover if ualty occurring on his premises. The the defendant failed to do any act duty here sought to be imposed upon which would minimize her injury, the master is of the same kind as that Upon the whole, the case last cited §13] GENERAI. PRINCIPLES. 17 It seems that, under some circumstances, culpability may be predi- cable of the failure to warn a servant who is endangered by the occur- I'ence of a casualty of the class discussed in this section. See § 209a, post. seems to embody the more correct prin- ciple. Questions of this type ought, it is submitted, to be decided by the jury, and should not be treated as if they were concluded by an absolute rule of law absolving the master under such circumstances. That the owner Vol. I. M. & S.— 2. of a mine may be held liable if his su- perintendent fails to adopt proper methods for saving the lives of laborers caught in the mine in which a fire has broken out, was held in Bessemer Land & [mprov. Go. v. Campbell (1898) 121 Ala. 50, 25 So. 793. CHAPTEE 11. WHAT DEGREE OF CARE A MASTER IS BOUISTD TO EXERCISE FOR THE PROTECTION OF HIS SERVANT. A. Generally. 14. Master bound to exercise as much care as a prudent man would exercise under the circumstances. 15. Master not bound to exercise more care than a prudent man. 16. Care exercised is to be proportioned to the dangers to which the serv- ant is exposed. a. Rule applied to the disadvantage of the master. 6. Rule applied to the advantage of the master. 16a. Master's violation of, or compliance with, a rule made by himself; im- plication from. I6b. Right to rely upon the recommendations and advice of others. 17. Comparison between, the degrees of care owed to a servant and to a stranger. B. Standard of due care; now far qualified by the minority of the servant. 18. Negligence not inferable from the mere employment of a minor to do dangerous work. 19. Greater care must be exercised for the protection of young servants. 20. Limits of this obligation. 21. Employment of minor without his father's consent; effect of. A. Geweeally. 14. Master l)ound to exercise as much care as a prudent man would exercise under the circumstances. — The rule defining the nature and extent of the master's obligation with respect to the condition of the agencies of his business may be stated in its most general form as fol- lows : The degree of care required of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his servants while in the per- formance of their work.^ What shall be deemed "due care" is to be '■Dobbins v. Broivn (1890) 119 N. Y. N. S. 918. A master "is, no doubt, 188, 23 N. E. 537. "If the employment bound to provide for the safety of his is of a. dangerous nature, a duty lies servant in the course of his employ- on the employer to use all reasonable ment, to the best of his judgment, in- precautions for the protection of the formation, and belief." Priestley v. servant." Romer, L. J., in Williams v. Fowler (1837) 3 Mees. & W. 1, Murph. Birmingham Battery & Metal Co. & H. 305, 1 Jur. 987, (1899) 2 Q. B. 338, 345, 68 L. J. Q. B. vl8 §14] DEGREE OF CARE. 19 "estimated on a consideration of the facts of each particular ease."^ It is "such care as reasonable and prudent men would use under sim- ilar circumstances."^ The care which such a man is, for the pur- poses of this rule, assumed to exercise, is that which he would exer- cise for his own safety if the instrumentality in question was fur- nished for his own personal use.* That is to say, a master is re- quired to furnish "such [appliances] as a prudent man would fur- nish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances."® 'Clarke v. Holmes (1862) 7 Hurlst. & N. 937, 31 L. J. Exch. N. S. 356, 8 Jur. N. S. 992, 10 Week. Rep. 405, per Byles, J. 'Bertha Zinc Co. v. Martin (1895) 93 Va. 791, 22 S. E. 869. "The test of negligence is the presence or absence of that degree of care which ordinarily prudent persons are accustomed to ob- serve about the same or similar affairs in the same or similar circumstances." Guinard v. Knapp-Stout & Go. Go. (1897) 95 Wis. 482, 70 N. W. 671. To same effect, see Bergquist v. Ghandler Iron Go. (1892) 49 Minn. 511, 52 N. W. 136. The standard of the duty to use care "is fixed by reference to what we should expect in lilie case from a man of ordinary sense, knowledge, and pru- dence." Pollock, Torts, p. 24. A few variants of this form of expression may be quoted for purposes of illustration: "The care of an ordinarily prudent per- son." Ellis V. 'New York, L. E. & W. R. Go. (1884) 95 N. Y. 546. "Such care as a prudent man would exercise under similar circumstances." Hous- ton & T. R. Go. V. Oram (1878) 49 Tex. 341 ; International & G. N. R. Go. V. Bell (1889) 75 Tex. 50, 12 S. W. 321; The Oriental -v. Barclay (1897) 16 Tex. Civ. App. 193, 41 S. W. 117; Gulf, G. <& 8. F. R. Go. V. 8ohwabbe (1892) 1 Tex. Civ. App. 573, 21 S. W. 706; Qu in tana v. Consolidated Kansas City Smelling & Ref. Go. (1806) 14 Tex. Civ. App. 347, 37 S. W. 369; Huhm, v. Missouri P. R. Co. (1887) 92 Mo. 440, 4 S. W. 937. "Such care as would rea- sonably be expected of a prudent mas- ter under the same circumstances." Warner v. Chicago, R. I. & P. R- Co. (1895) 62 Mo. App. 184. "The reason- able care which the ordinarily prudent and careful man exercises in like or similar work." Jungnitseh v. Michi- gan Malleable Iron Co. (1895) 105 Mich. 270, 63 N. W. 296. A master is "held to the employment of every pre- caution which a reasonably prudent man would exercise under like circum- stances." Pullman Palace Car Go. v. Laack (1892) 143 111. 242, 18 L. R. A. 215, 32 N. E. 285; Chicago & A. R. Go. V. Mahoney (1879) 4 111. App. 262. It is not error to refuse an instruction to the effect that a master is released from liability to an employee working in a dangerous place, simply because the injury was not wilfully inflicted. St. Louis & T. H. R. Co. v. Eggmann (1895) 60 111. App. 291, Aflirmed in (1896) 161 111. 155, 43 N. E. 620. The degree of diligence due, respectively, between employer and employee under the laws of another state will be held to be only ordinary diligence, in the ab- sence of evidence to the contrary. Richmond & D. R. Go. v. Mitchell (1893) 92 Ga. 77, 18 S. E. 290. '' Harley v. Buffalo Car Mfg. Co. (1894) 142 N". Y. 31, 36 N. E. 813. ^ Marsh v. Chickering (1886) 101 N. Y. 396, 5 N. E. 56. No negligence is established where the master "took as much care for the safety of his serv- ants as for his own safety." Sykes v. Packer (1882) 99 Pa. 465. Compare the statements that the care exacted of a master is that which "a person of ordinary prudence and caution would use if his own interests were to be af- fected, and the whole risk were his own" {Hoffman v. Dickinson [1888] 31 W. Va. 142, 6 S. E. 53) ; or, "all the care and caution which a prudent man would ordinarily take for the safety and protection of his own person under the same circumstances" (Brymer v. Southern P. Co. [1891] 90 Cal. 496, 27 Pac. 371 [approving of an instruction which described the employer's stand- ard of duty as being the exercise of "reasonable and ordinary care, skill, and diligence"] ) ; or, "such care as a prudent man would exercise for his own protection if his own person or life were exposed to the danger which would 20 MASTER AND SERVANT. [chap. II. In the case of a corporation the obliga tion is to use "such watchful- ness, caution, and foresight as, under all the circumstances of the par- ticular service, a corporation controlled by careful, prudent officers ought to exercise."® Tlje phrases used by judges in describing the nature of the care ^\'hich this ideally prudent man may be supposed to employ are quite numerous and diversified. For purposes of illustration, some of these phrases are tabulated in the note below ; but it is scarcely neces- sary to say that the list of authorities does not pretend to be exhaust- ive as regards the simpler and more common combinations of words. Additional examples of similar terminology will be found in the sub- sequent chapters which deal with the master's duties as to Inspection (xi.), Employment of Servants (xin.), and Rules (xv.).''^ result from their use" {Sappenfield v. Main Street £ Agri. Park R. Go. [1891] 91 Cal. 48, 27 Pae. 590) ; or, "the care and diligence which a man of ordinaiy prudence, engaged in a like business, would exercise for his own protection, and the protection of his property" (Smnoi v. Mobile & M. R. Co. [1880] 67 Ala. 13, 18; Louisville & N. R. Co. V. Allen [1885] 78 Ala. 494) ; or, "that degree of care which very careful and prudent men exercise in their own af- fairs" (Louisville & N. R. Co. v. Davis [1890] 91 Ala. 487, 8 So. 552). In Louisville & N. R. Go. v. McCoy (1883) 81 Ky. 403, the plaintiff in error had obtained from the trial judge an in- struction to the effect that "ordinary care is that degree of care which an ordinarily careful and prudent man usually exercises under like or similar circumstances in taking care of him- self, his family, or his property, or in the transaction of his business, when the same may endanger the safety of others." But this attempt to enlarge the obligations of the master did not succeed. "It is against the laws of na- ture," said the court, "to expect a man of the greatest prudence to take the same care of an adult engaged in the dangerous employment of brakesman, which he has voluntarily taken upon himself, and agreed to perform with that degree of care upon his own part •which ordinarily prudent persons of his class usually take in protecting them- selves from danger, as he would of his own family placed in a like predica- ment. For what would not a husband and father hazard to protect his own family from the ordinary dangers to which a brakesman is exposed?" "Wabash R. Co. v. McDaniels (1882) 107 U. S. 454, 27 L. ed. U0.5, 2 Sup. Ct. Rep. 932. Or "such reasonable care as a corporation managed by prudent men could use." Union P. R. Go. v. O'Brien (1892) 1 C. C. A. 354, 4 U. S. App. 221, 49 Fed. 538. Or, as another case has it, the directors are required to exer- cise that "reasonable care, skill, and foresight over the affairs of the corpo- ration which reasonable and prudent men occupying such positions ordinar- ily exercise under the same circum- stances." Warner v. Erie R. Go. (1868) 39 N. Y. 468. • 'Care (without any qualifying epi- thet — rather loosely used, arguendo). Arjers v. Richmond £ D. R. Go. (1888) 84 Va."679, 5 S. E. 582. Care and prudence. Noyes v. Smith (1856) 28 Vt. 59, 65 Am. Dee. 222. Diligence and circumspection. Gov}- les V. Richmond & D. R. Co. (1881) 84 N. C. 309, 37 Am. Rep. 620. Skill, care, and caution. Porter v. Hannibal & St. J. R. Co. (1879) 71 Mo. 66, 36 Am. Rep. 454; Muirhead V. Hannibal & St. J. R. Co. (1885) 19 Mo. App. 634 (instruction to that effect ap- proved in these two cases ) . Ordinary care. Tarrant v. Webb (1856)^ 25 L. J. C. P. X. S. 261, 18 C. B. 79 (; Texas d P. R. Co. v. Rhodes (1895) 18 C. C. A. 9, 30 U. S. App. 561, 71 Fed. 145; Broicn v. The D. S. Gage (1872) 1 Woods, 401, Fed. Cas. Xo. 2,002; Erskine v. China Valley Beet-Sugar Go. (1895) 71 Fed. 270; ^moot V. Mobile & M. R. Go. (1882) 67 Ala. 13; Soulliventern Teleph. Co. v. Woughter (1892) 56 Ark. 206, 19 S. W. 575; Mattheus v. Bull (1897; Cal.) 47 Pac. 773; Wells v. Goe (1886) 9 Colo, I 14J DEGREE OF CARE;. ^1 159, II Pac. 60; Diamond State Iron which the declaration in Priestley v. Co. V. Giles (1887) 7 Houst. (Del.) Fouler (1837) 3 Mees. & W. 1, Murph. 556, 11 Atl. 189; Chicago Anderson, & H. 305, 1 Jur. 987, was held to be Pressed Brick Co. v. Hohkoiciak (1892) insufficient were deemed unsatisfactory. 45 111. App. 317; Consolidated Coal Co. "The declaration," said the court, V. Scheller (1892) 42 111. App. 619; "seems to have been considered as set- Indianapolis d Ht. L. R. Go. v. Watson ting forth a right of action growing out (1888)114 Ind. 20, 15 N. E. 824; Louis- of a contract of warranty; whereas, in viLle, N. A. d- G. R. Co. v. Bates (1890) fact, it alleged substantially that from 146 Ind. 564, 45 N. E. 108; Crcenleaf the relation of master and servant there V. Illinois C. R. Co. (1870) 29 Iowa, 14, was to be implied, on the part of the 4 Am. Rep. 181; St. Louis, Ft. S. cC- W. master, a contract to use due and R. Go. V. Iruin (1887) 37 Kan. 701, 16 proper care. If the implied contract Pac. 140; Atchison, T. <& S. F. R. Co. were that the master should use ordi- V. Holt (1883) 29 Kan. 149; Cherokee nary care in procuring a suitable car- & P. Coal ct Min. Go. v. Britton (1896) riage and suitable fellow servants for 3 Kan. App. 292, 45 Pac. 100; Illinois the plaintiff, the inconvenient and ab- C. R. Co. V. Billiard (1896) 99 Ky. surd consequences which the decision in 684, 37 S. W. 75; Britton v. Northern that case seems to have been intended P. R. Co. (1891) 47 Minn. 340, 50 N. to avoid would not have resulted from W. 231; KcoLcn v. St. Louis R. Co. holding the declaration sufficient. The (1897) 141 Mo. 86, 41 S. W. 926; terms 'ordinary and reasonable care Burnes v. Kansas City, Ft. S. & M. R. and diligence' have an exactly defined Co. (1895) 129 Jlo. 41, 31 S. W. 347; meaning in law, and perhaps they Williams v. St. Louis & S. F. R. Co. should be used in declarations of this (1803) 119 Mo. 316, 24 S. W. 782; kind." Wright v. Xcic York G. R. Co. (1858) Reasonable care. Smith v. Baker 28 Barb. 80; Chcsson v. John L. Roper [1891] A. C. 325, 362, 60 L. J. Q. B. N". Lumber Go. (1890) 118 N. C. 59, 23 S. S. 683, 65 L. T. N. S. 467, 55 J. P. 600, E. 925; Gihhes v. Greenville & G. R. Co. 40 Week. Rep. 392; Williams v. Bir- (1883) 19 S. C. 492; East Tennessee, mingham Battery & Metal Co. [1899] V. & G. R. Go. V. Aiken (1890) 89 2 Q. B. 338, 68 L. J. Q. B. N. S. 918; Tenn. 245, 14 S. W. 1082; Gulf, G. & Holland v. Tennessee Coal, I. & R. Go. S. F. R. Co. V. Silliphunt (1888) 70 (1890) 91 Ala. 444, 12 L. R. A. 232, Tex. 623, 8 S. W. 673; Gulf, G. d S. F. 8 So. 524; Mackey v. Baltimore & P. R. R. Co. V. Wells (1891) 81 Tex. 685, 17 Go. (1890) 8 Maekey, 282; Colorado S. W. 511; Southuest Virginia Improv. Midland R. Go. v. O'Brien (1891) 16 Go. V. Andrew (1889) 86 Va. 270, 9 Colo. 219, 27 Pae. 701; O'Keefe v. Na- S. E. 1015; Baltimore & 0. R. Co. v. tional Folding Box & Paper Go. (1895) McKenzie (1885) 81 Va. 71; Ghesa- 66 Conn. 38, 33 Atl. 587; Quinn v. peake & 0. R. Co. v. Lash (1896; Va.) Johnson Forge Go. (1892) 9 Houst. 24 S. E. 385; Hoffman v. Dickinson (Del.) 338, 32 Atl. 858; Edward Hiiics (1888) 31 W. Va. 142, 6 S. E. 53. An Lumber Co. v. Ligas (1898) 172 111. instruction defining the extent of the 315, 50 N. E. 225, Affirming (1896) 68 master's duty by this epithet is unex- 111. App. 523; United Slates Rollinr; ceptionable. Oibbes v. Greenville & G. Stock Go. v. Wilder (1886) 116 111. R. Go. (1883) 19 S. C. 492. In E.r, 100, 5 N. E. 92; Pioneer Fireproof parte Johnson (1883) 19 S. C. 492, Gonstr. Go. v. Hou-ell (1901) 189 III. counsel contended that the true meas- 123, 59 N. E. 535; Pennsylvania Co. v. ure of liability was "all reasonable and Witte (1896) 15 Ind. App. 583, 43 N. proper care," and that these words E. 319, 44 N. E. 377; Clark County Ce- should have been used in the instruc- ment Go. v. Wright (1897) 16 Ind. tion. But the court said it did not see App. 630, 45 N. E. 817; Corson v. Coal any appreciable difference in the two Hill Coal Go. (1897) 101 Iowa, 224, 70 phrases. The rule that ordinary care N. W. 185; Hannah v. Connecticut satisfies the requirements of the law River R. Go. (1891) 154 Mass. 529, 28 necessarily involves the corollary that N. E. 682; Tierneij v. Minneapolis & St. an employer is not culpable where the L. R. Co. (1885) 33 Jlinn. 311, 53 Am. evidence shows that a "very high de- Rep. 35, 23 N. W. 229; Broirn v. Her- gree of care" had been exercised. Al- shey Jjand & Lumber Co. (1896) 65 Icrton Packing Cn. v. Egan (1877) 86 Mo. App. 162; Comben v. Belleville 111. 253. In Fifield v. Northern R. Go. Stone Co. (1896) 59 N. J. L. 226, 36 (1860) 42 N. H. 225, the grounds upon Atl. 473; Coppins v. New York G. <& 22 MASTER A2>fD SERVANT. tcHA*. il. B. R. R. Co. (1890) 122 N. Y. 557, 25 Go. v. McEnery (1879) 91 Pa. 185, 38 N. E. 915, Affirming (1888) 48 Hun, Am. Rep. 662. 292; Bailey v. Rome, \v. ci 0. R. Oo. Ordinary skill and care. Pennsyl- (1893) 139 N. Y. 302, 34 N. E. 918; vania Co. v. Whitcomb (1887) 111 Ind. Nutt V. Southern P. Co. (1894) 25 Or. 212, 12 N. E. 380; Ghesson v. John L. 291, 35 Pac. 653; Philadelphia, W. & Roper Lumler Co. (1896) 118 N. C. 59, B. R. Co. V. Keenan (1883) 103 Pa. 23 S. E. 925. 124; Wannamaker v. Burke (1886) 111 Ordinary diligence or common pru- Pa. 423, 2 Atl. 500; Moore v. Pennsyl- dence. Central R. & Bkg. Go. v. Lanier vania R. Go. (1895) 167 Pa. 495, 31 (1889) 83 Ga. 587, 10 S. E. 279. Atl. 734; Houston & T. G. R. Go. v. Ordinary care, skill, and diligence. Myers (1881) 55 Tex. 110; Bonner v. Trinity County Lumber Go. v. Denham La None (1891) 80 Tex. 117, 15 S. W. (1892) 85 Tex. 56, 19 S. W. 1012. 803; Oliver v. Ohio River R. Go. Reasonable care and caution (or pre- (1890) 42 W. Va. 703, 26 S. E. 444. caution). Missouri, K. & T. R. Co. v. Due care. Hewitt v. Flint & P. M. Baker (1896; Tex. Civ. App.) 37 S. R. Go. (1887) 67 Mich. 61, 34 N. W. W. 94 (instruction embodying this 659; Sanders v. Etiwan Phospliate Go. phrase is wrongly refused) ; Burlington (1883) 19 S. C. 510; Uttle Rock & Ft. & C. R. Co. v. Uehe (1892) 17 Colo. S. R. Go. V. Eubanks (1886) 48 Ark. 280, 29 Pajc. 175; Porter v. Hannibal 460, 3 S. W. 808; Cullen v. National & St. J. R. Go. (1879) 71 Mo. 66, 36 Sheet Metal Roofing Co. (1887) 46 Am. Rep. 454. Hun, 562; Rice v. King Philip Mills Reasonable care and diligence. At- (1887) 144 Mass. 229, 59 Am. Rep. 80, chison, T. & S. F. R. Co. v. Na/pole 11 N. E. 101; Roth v. Northern Pacific (1895) 55 Kan. 401, 40 Pac. 669; Hal- Lumbering Co. (1889) 18 Or. 205, 22 lower v. Henley (1856) 6 Cal. 200; Pac. 842. Southern P. R. Co. v. Aylward (1891) Proper care. Ryan v. Fowler (1862) 79 Tex. 675, 15 S. W. 697; Babcock v. 24 N. Y. 410, 82 Am. Dec. 315. That OU Colony R. Co. (1890) 150 Mass. the phrases "ordinary care" and "proper 467, 23 N. E. 325 ; Cleveland, C. G. & care" are identical in meaning, see St. L. R. Co. v. Selsor (1894) 55 111. Louisville & N. R. Co. v. Kelly (1894) App. 685. No higher measure of care 11 C. C. A. 260, 24 U. S. App. 103, 63 than that expressed by this phrase can Fed, 407; Wabash R. Go. v. McDaniels be demanded, even where the handling (1882) 107 U. S. 454, 27 L. ed. 605, 2 of the appliance which caused the in- Sup. Ot. Rep. 932, § 16, note 15, and § jury was outside the scope of the serv- 22a, note 5, post. ant's employment. Mary Lee Coal & Suitable care. Gibson v. Pacific R. R, Co. v. Chambliss (1892) 97 Ala. 171, Go. (1870) 46 Mo. 163, 2 Am. Rep. 497. n So. 897 Ordinary diligence. Missouri P. R. Reasonable care and prudence. Wash- Go. V. Lyde (1S82) 57 Tex. 505; Qum- ^ j^,, ^ gj ^ (.„_ ^_ UcDade (1890) *«"«,. ^- .^°T^'''°Mta«fT^* n-^ 135 U. S. 554, 34 L. ed. 235, 10 Sup. Smemng&Ref. Co. (1896) 14 Tex. Civ. ^t. Rep. 1044; The France (1894) 8 C. App. 347, 37 S. W. 369; Jones v. Shaw p a 10= nn tt q a^t. 010 kq ■w^.a (1897) 16 Tex. Civ. App. 290, 41 S. W. ^.:,J^- l^^'. ^%^- }\^^^^ ^i^' ^^ ^«^'^- gQ(j ' ^'^ 479; Louisville d N. R. Co. v. Orr Rleasonable diligence. Wabash R. Co. dSf) 84 Ind. 50; Marshall v. Widdi- V. McDaniels (1882) 107 U. S. 454, 27 comb Furmture Co. (1887) 67 Mich. L. ed. 605, 2 Sup. Ct. Rep. 932; The "^' ^4 N. W. 541; Harley v. Buffalo France (1894) 8 C. C. A. 185, 20 U. S. C'"'" ^fs- Co- (189^) 142 N. Y. 31, 36 App. 212, 59 Fed. 479; Bennett v. Syn- N. E. 813; Probst v. Delamater (1885) dicate Ins. Go. (1888) 39 Minn. 254, 100 N. Y. 266, 3 N. E. 184. 39 N. W. 488; Chicago & E. I. R. Co. v. Reasonable care and skill. Rogers Driscoll (1897) 70 111. App. 91. v. Leyden (1890) 127 Ind. 50, 26 N. B. Proper diligence. Anderson v. Ben- 210. nett (1888) 16 Or. 515, 19 Pac. 765. Reasonable skill and diligence. Plefka Ordinary care and diligence. War- v. Knapp-Stout Lumber Go. (1897) 72 ner v. Erie R. Go. (1868) 39 N. Y. 468; Mo. App. 309. Bohn V. Chicago, R. I. d P. R. Co. Reasonable care, skill, a.nd diligence. (1891) 106 Mo. 429, 17 S. W. 580. Chicago & E. R. Co. v. Lee (1897) 17 Ordinary care and prudence. Gibson Ind. App. 215, 46 N. E. 543. V. Pacific R. Go. (1870) 46 Mo. 163, 2 Due care and diligence. Painton v. Am. Rep. 497; Mansfield Coal & Coke Northern G. R. Co. (1880) 83 N. Y. 7; § IS] DEGREE OF CARE. 23 A master is bound to exercise ordinary care in furnishing instru- mentalities, whether they are of a simple character, or unusually dan- gerous and complicated.* 15. Master not bound to exercise more care than a prudent man. — Ballard v. Hitchcock Mfg. Co. (1889) Covey v. Bannihal & 8t. J. B. Co. 51 Hun, 188, 4 N. Y. Supp. 940. (1885) 86 Mo. 635. Due care and skill. Union P. R. Co. Reasonable and ordinary care and V. O'Brien (1892) 1 C. C. A. 354, 4 U. prudence. Union P. B. Co. v. Daniels S. App. 221, 49 Fed. 538. (1894) 152 U. S. 684, sui nom. Union Ordinary and reasonable care. Wor- P. B. Go. v. Snyder, 38 L. ed. 597, 14 mell V. Maine G. B. Co. (1887) 79 Me. Sup. Ct. Rep. 756; Gil)Son v. Pacific R. 397, 10 Atl. 49; Carlson v. Phoenix Co. (1870) 46 Mo. 163, 2 Am. Rep. 497. Bridge Co. (1890) 55 Hun, 485, 8 N. Y. Reasonable and ordinary care, skill, Supp. 634; Union P. B. Co. v. Fray and diligence. Brymer v. Southern P. (1890) 43 Kan. 750, 23 Pac. 1039; Co. (1891) 90 Cal. 496, 27 Pac. 371. Joseph Garneau Cracker Co. v. Palmer Reasonable and proper care and dili- (1889) 28 Neb. 307, 44 N. W. 463; gence. Ardesco Oil Co. v. Gilson {IS69) Ambrose v. Angus (1895) 61 III. App. 63 Pa. 146; Beilly v. Gamphell (1894) 304; Consolidated Coal Co. v. Scheller 8 C. G. A. 438, 20 U. S. App. 334, 59 (1891) 42 111. App. 619; Mad Biver & Fed. 990. L. E. B. Co. V. Barber (1856) 5 Ohio Reasonable and ordinary care and St. 541, 67 Am. Dec. 312. An instruc- diligence. Mad River <& L. E. B. Co. tion is not erroneous in which the word v. Barber { 1856 ) 5 Ohio St. 541, 67 "judgment" is added to this phrase, as Am. Dec. 312. it is regarded as synonymous, in this Reasonable and proper foresight, connection, with "prudence." Joseph knowledge, care, and discretion. Gal- Garneau Cracker Co. v. Palmer (1889) veston, U. & S. A. B. Go. v. Davis 28 Neb. 307, 44 N. W. 463. (1893) 4 Tex. Civ. App. 468, 23 S. W. Reasonable and proper vigilance. 301, Affirmed on rehearing in 23 S. W. Atchison, T. & S. F. B. Co. v. Holt 1019. (1883) 29 Kan. 149. Suitable care and foresight. Gibson Ordinary and reasonable care and v. Pacific B. Co. (1870) 46 Mo. 163, 2 diligence. Rush v. Missouri P. B. Co. Am. Rep. 497. (1887) 36 Kan. 129, 12 Pac. 582; St. Ordinary precautions. Berns v. Gas- Louis & 8. F. B. Co. V. Weaver (1886) ton Gas Coal Go. (1885) 27 W. Va. 35 Kan. 412, 57 Am. Rep. 176, 11 Pac. 285, 55 Am. Rep. 304. 402; Mad Biver & h. E. B. Co. v. Bar- Reasonable precautions. Moran v. her (1856) 5 Ohio St. 541, 67 Am. Dec. Corliss Steam Engine Co. (1899) 21 R. 312; Camp Point Mfg. Co. v. Ballon I- 386, 45 L. R A. 267, 43 Atl. 874. (1874) 71 111 417; Missouri, K. & -^H reasonable precautions. Pater- T. B. Co. V. Young (1896) 4 Kan. App. sow v. yVallaoe (1854) 1 Macq. H. L. 219, 45 Pac. 967; Mangum v. Bullion, Cas. 748, per Ld. Cranworth; Buzzell B & C. Min. Co. (1897) 15 Utah, 534, ^- Lacoma Mfg. Go. (1861) 48 Me. 113, 50 Pac. 834; Missouri, K. & T. B. Co. U ^™- ^f' f^^^ ^"'i^!' ^Central B. v. Kirlcland (1895) 11 Tex. Civ. App. C^°- ^W,^} .** lo^^, 134. See also the 528, 32 S. W. 588; Wabash, St. L. & P. «^?f« ^'^"^ ^f ""^^ ^' /Tfi' t tt B. Co. V. Fenton (1883) 12 111. App. .^"""f^^ attention and skill. In ^noo^- .,» .^ ^1 ■ r> T J n n ville Iron Co. v. Dobson (1881) 7 Lea, 417; War^r V. (7fetcaffo, ILL & P. B. gg^ j^. ^^3 j^^j^ ^j^^^ ^he jury were Co. (1895) 62 Mo. App. 184. properly instructed that it is the duty Ordinary and reasonable care and „f ^he employer to see that his machin- supervision. McKee v. Chicago, B. I. ^j-y is always, while in use, kept in per- ii P. B. Co. (1891) 83 Iowa, 616, 13 L. feet repair, "so far as that can be done R. A. 817, 50 N. W. 209. ty the application of the proper atten- Reasonable and orijinary care and tion and skill." skill. Hannibal & St. J. B. Co. v. Kan- Ordinary care, prudence, and skill. aley (1888) 39 Kan. 1, 17 Pac. 324. Chicago & A. B. Co. y. Du Bois (1894) Ordinary and reasonable care and 56 111. App. 181. foresight. Krampe v. St. Louis Brew- ' Warner v. Chicago, B. I. & P. B. mg Asso. (1894) 59 Mo. App. 277; Co. (1895) 62 Mo. App. 192. 24 MASTER AND SERVANT. [chap. 11. As the master is deemed to be culpable if he fails to exercise that de- gree of care which is denoted by one or other of the expressions used to describe the hypothetical conduct of a man of ordinary prudence, so, on the other hand, he is not required to satisfy any higher stand- ard of diligence or skill than that which such a man may be supposed to exercise under the circumstances.^ Any instruction is correct which embodies this principle.^ On the other hand, it is a misdirec- tion to charge the jury in language the effect of which is to subject the master to more extensive obligations than those indicated by the phrase "ordinary care" or its equivalents.* Similarly, any declara- 'All that can be required of the mas- coin Street R. Co. v. Cow (1896) 48 ter is "that he shall use due and rea- Neb. 807, 67 N. W. 740; Mad River & sonable diligence in providing safe and L. E. R. Co. v. Barber (1856) 5 Ohio sound machinery, and in the selection St. 541, 67 Am. Dee. 312; Hannibal <£• of fellow servants of competent skill St. J. R. Go. v. Kanaley (1888) 39 and prudence, so as to make it reason- Kan. 1, 17 Pac. 324; 'Nutt v. Southern ably probable that injury will not oc- P. Co. (1894) 25 Or. 291, 35 Pac. 653; cur in the exercise of the employment." Texas & P. R. Go. v. McCoy (1896) 90 Wonder v. Baltimore & 0. R. Go. Tex. 264, 38 S. W. 36; Missouri, K. d (1870) 32 Md. 411, 3 Am. Rep. 143. T. R. Co. v. Haiier (Tex. Civ. App. If the master "employs such reasonable 1897) 43 S. W. 1078. In one case it care and prudence in selecting or order- was remarked that the master is bound ing what he requires in his business as to provide for the servants' safety "to every prudent man is expected to em- the best of his skill and judgment." ploy in providing himself with the eon- Baltimor-e <& 0. R. Co. v. McKenzie venienees of his occupation, this is all (1885) 81 Va. 71. But the cases cited that can be required of him, and he is in the next note show that this phrase only responsible where he has failed to would, in many courts at least, be con- use such care in securing the making sidered misleading if used in an in- of such machinery by competent and struetion to a jury. The mere fact skilful persons, or in the selection that a corporation, an employee in thereof." Marshall v. Widdicomb Fur- whose machine shop was killed, was niture Co. (1887) 67 Mich. 175, 34 N. also the owner of a railroad which it W. 541. "Extraordinary vigilance" is operated, and was sued as such in its not exacted of the master, .irdesco corporate name, does not fix upon it a Oil Co. V. Oilson |1869) 63 Pa. 146. different or higher degree of liability There is no obligation incumbent upon than that of other machine owners to- him to use the highest skill, the wards their employees in shop work, greatest foresight, extraordinai-y care. East Tennessee, V. & G. R. Co. v. Aiken Cooper V. Central R. Co. (1876) 44 (1890) 89 Tenn. 245, 14 S. W. 1082. Iowa, 134. Compare the language used ''An instruction that an employee of in Peirce v. Clavin (1897) 27 C. C. A. a railroad company cannot recover for 227, 53 U. S. App. 492, 82 Fed. 550; an injury caused by a defect common Atchison, T. & S. F. R. Go. v. Meyers to railroads, and such as could not have (1894) 11 C. C. A. 439, 24 U. S. App. been avoided by reasonable care and at- 295, 63 Fed. 743; Reed v. Stochmeyer tention on the part of the company, (1896) 20 C. C. A. 381, 34 U. S. App. was approved in Little Rock & Ft. 8. 727, 74 Fed. 186; Louisville d N. R. R. Co. v. Eubanks (1886) 48 Ark. 460, Co. V. Johnson (1897) 27 C. C. A. 367, 3 S. W. 808. 53 U. S. App. 381, 81 Fed. 679; Little » An instruction that a master is Rock & Ft. S. R. Go. V. Dufey (1880) bound "to do everything that can be 35 Ark. 602 ; North Chicago Rolling reasonably done for the safety of his Mills Co. V. Monka (1879) 4 111. App. employees" is erroneous. Galveston, H. 664; Missouri, K. & T. R. Go. v. Young & 8. A. R. Co. v. Gormley (1898) 91 (1896) 4 Kan. App. 219, 45 Pac. 963; Tex. 393, 43 S. W. 877. A charge that Atchison, T. & 8. F. R. Go. v. Winston a railway company sbould protect its (1896) 56 Kan. 456, 43 Pac. 777; Lin- employees from injury by reason of la- 16] begHee op care. 2S tion is bad which is based on the assumed existence of a duty to use any higher degree of care than that described as "ordinary ;" but it will be construed as a whole, and if, when subjected to this test, it does not propose an excessively high standard, it will stand against a demurrer.^ A mere error of judgment does not import culpability.® A master is not bound to take into account the contingency that either his servants or third persons will fail to use ordinary care. See chapter iv.^ post. Nor is he required to anticipate improbable occurrences. See chapter x., post. 16. Care exercised is to be proportioned to the dangers to which the tent defects, "so far as human care or foresight" can do it, is erroneous. Missouri P. B. Co. v. Lyde (1882) 57 Tex. 505. To the same effect is Cleve- land, C. G. & St. L. R. Co. V. Selsor (1894) 55 111. App. 085, where an in- struction declaring the defendant to be bound to do "all that human care, vig- ilance, and foresight can do" was dis- approved. An instruction that negli- gence on the part of defendant is the want of such care and prudence as per- sons "skilled in that business" observe under similar circumstances, and that want of ordinary care on the part of plaintiff is the absence of such care as ordinary persons "skilled in the busi- ness" he was engaged in oidinarily ob- serve under similar circumstances, is eiToneous. English v. Galveston, H. & S. A. B. Go. (1899) 22 Tex. Civ. App. 3, 53 S. W. 57. A requested amend- ment of an instruction with reference to the degree of care which a master must exercise, by the addition of the words "to the best of its skill and judg- ment," is properly refused. McDonald V. Norfolk & W. 'B. Go. (1897) 95 Va. 98, 27 S. E. 821. An instruction that a railway company should keep its track in the condition lea-st likely to cause injury, so far as this can reason- ably be done, in an action for negli- gently causing the death of one of its brakemen, is erroneous as imposing on the company the duty to Ti^e the "high- est degree of diligence." Missouri P. B. Co. V. Gibson (1800) 50 Kan. 661, 44 Pae. 612. An instruction that a railroad company owes the "hiyhest de- gree of care" to its employee-^ is error- neous. Texas C. /?. Co. v. Lyons (Tex. Civ. App.; ISlltli 34 S. W. 362. In For- dycr V. Culver (1S93) 2 Tex. Civ. App. 5(39, 22 S. W. 237, one of the instruc- tions! was to the effect that a railway company's duty is not performed sim- ply by employing competent men to re- pair and inspect its cars, but it must see that they are actually kept in re- pair; and its failure to do so will ren- der it liable for any injury to an em- ployee resulting therefrom. In another it was also laid down that the meas- ure of the company's duty was to ex- ercise "ordinary care." It was held that, taken as a whole, the instruction did not impose any greater duty upon the company than that of exercising or- dinary care. " A complaint is not demurrable on the ground that it alleges that the em- ployer was bound to use a degree of care higher than the law requires, where one count declares that it was his duty "to use due and proper care for the safety" of the plaintiff, and "to the extent of his ability, by due and proper skill and care, so to provide . . as that the plaintiff could safely work;" and another count de- clai'es that it was the employer's duty to keep the machinery, etc.," in as good order, safe condition, and under as good control as human care, foresight, and prudence could reasonably provide." The words "due and proper care," in the first count, and the word "reason- ably," in the second, qualify the re- mainder of the expressions, and permit the complaint to be construed in such a, sense that it charges the employer merely with a duty to use "reasonable" care. South West Iviprov. Go. v. Smith (1888) 85 Va. 300, 7 S. E. 305. " Hughes v. Oreqon Improv. Co. (1898) 20 Wash. 294, 55 Pac. 119, where the .stopping of the air shaft of a fan in a. mine under the influence of the excitement and confusion occa- sioned upon the discovery of fire caused the death of some of the miners. 26 MASTER AKD SERVANT. [chap. n. servant is exposed. — a. Rule applied to the disadvantage of the mas- ter. — The well-known definition of negligence by Willes, J., as being "the absence of care according to circumstances"^ is applicable to cases involving injuries to servants.^ The degree of care, therefore, which the master is bound to exercise, is measured by the dangers to be apprehended or avoided,^ or, as another case puts it, "must be pro- portionate to the dangerous nature of the means, instruments, and machinery used;"* or, in the words of the Supreme Court of the United States, the "master is bound to observe all the care which pru- dence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter."® ' Vaughwn v. Taff Vale R. Co. (1860) plements, and the dangers to be encotin- 5 Hurlst. & N. 679, 688, 29 L. J. Exch. tered in their use. Covey v. Bannibal N. S. 247, 6 Jur. N. S. 899, 2 L. T. N. d St. J. R. Co. (1885) 86 Mo. 635. S. 394, 8 Week. Rep. 594. "In determining the question of reason- ' Cases in which it was expressly able care on the part of the master, adopted are Gates v. Pennsylvania R. . . . regard must be had to the Go. (1893) 154 Pa. 566, 26 Atl. 598; risks and dangers attending the use of Dell V. Phillips Glass Co. (1895) 169 the instrumentality furnished the serv- Pa. 549, 32 Atl. 601. ant in his employment." Anderson v. ^De Graft v. New York C. & E. B. Minnesota <& N. W. R. Co. (1888) 39 R. Co. (1879) 76 N. Y. 125. Minn. 523, 41 N. W. 104. "The care 'Porter v. Hannibal & St. J. R. Co. that the law requires for the safety of (1879) 71 Mo. 72, 36 Am. Rep. 454 (in- the employee is that care which is re- struction approved) ; Muirhead v. Han- garded by the good common sense of nibal & St. J. R. Co. (1885) 19 Mo. mankind as reasonably due under all App. 634. the circumstances of the case." Co- ' Hough V. Texas & P. R. Go. (1879) lumbus & X. R. Go. v. Webb (1861) 12 100 U. S. 213, 25 L. ed. 612. Other Ohio St. 475. "The measure of a mas- statements of a similar tenor are the ter's duty to his servant is reasonable following: "The measure of skill ajid care, having relation to the parties, the care required of those who use and con- business in which they are engaged, and trol such agencies of power and danger the exigencies which require vigilance must bear proportion to the consequen- and attention." Oliver v. Ohio River ces liable to follow from the want of R. Co. (1896) 42 W. Va. 703, 26 S. E. such care and skill." Texas d P. R. 444. In Reed v. Stoclcmeyer (1896) Co. V. Barrett (1895) 14 C. C. A. 373, 20 C. 0. A. 381, 34 U. S. App. 727, 74 30 U. S. App. 196, 67 Fed. 214. "The Fed. 186, the court, in speaking of the amount of care required is measured by duty of the master to provide a reason- the circumstances of each case, depend- ably safe place in which the servant ing upon the kinds of machinery used, may perform his work, and to keep it the risks incident to its use, and the in such suitable condition, said: "This hazard of the business in which used." duty is not absolute, but relative. It Jones V. New York C. d H. R. R. Go. is measured by the nature and charac- (1880) 22 Hun, 284. The duty of the ter of the employment, the location of master is "to exercise greater care, the premises and their surroundings, when . . . [the machinery] in use There are employments that of them- was known, or might by inquiry and selves are necessarily dangerous, in inspection have been ascertained, to be connection with which no position can dangerous, than when it was compara- be made secure. In such case the law tively safe under all circumstances." requires of the master that he shall use Turnery. Goldsboro Lumber Co. (1896) ordinary care that the dangers of the 119 N. C. 387, 26 S. E. 23. What is employment are not unnecessarily en- reasonable and ordinary care depends larged; that he shall take proper care on the nature and character of the im- to furnish such safeguards as are cua- S 16] Degree op dAlifi. 27 The cases in which this principle suggests itself as the appropriate criterion of the master's fulfilment or nonfulfilment of his legal obli- gations may be said to fall into three categories : (1) Those in which the business carried on by him is, as regards its ordinary incidents, unusually dangerous, such as that of a railway company,® or of mine owners,'' or of persons operating an elevator,® tomarily employed in the performance ° "The managers of railroad compa- of like hazardous service, so that the nies are engaged in conducting for servant exercising proper care may ren- profit a business which at the best is der his service without exposure to hazardous to human life. In providing dangers that are not within the obvious sound tools and safe appliances for the scope of the employment as usually car- use of their employees, their plain legal ried on." In Harroun v. Brush Elen- duty, to say nothing of the dictates of trie Light Co. (1896) 12 App. Div. 126, humanity, requires great vigilance. 42 N. y. Supp. 716, the court approved They caimot be heard to excuse them- a charge, that "the care and prudence selves from taking all reasonable care [exercised by the employer in the selee- on the ground that care involves labor tion and provision of appliances for or expense." Morton v. Detroit, B. G. the use of the employee] must be pro- <6 A. B. Co. (1896) 81 Mich. 423, 46 N. portioned to what may properly be ex- W. 111. See also Louisville & N. R. pected of him under the circumstances, Co. v. Davis (1899) 91 Ala. 487, 8 So. and increase in a, corresponding ratio 552; St. Louis, A. & T. R. Go. v. Trip- with the danger and hazard necessarily lett (1891) 54 Ark. 289, 11 L. R. A. connected with the use of the applian- 773, 15 S. W. 831^ 16 S. W. 266, a case ces." Compare the language used in in which the injured servant was ex- New York & G. Miming Syndicate & Co. posed to the "extreme" dangers of the v. Rogers (1887) 11 Colo. 6, 16 Pac. work of car repairing. So it has been 719; Ashland Goal & I. B. Co. v. Wal- said to be the duty of a railroad com- io-ce (1897) 101 Ky. 626, 42 S. W- 744, pany.to exercise "the highest degree of 43 S. W. 207; Wood v. Beiges (1896) diligence" to construct a safe roadbed, 83 Md. 257, 34 Atl. 872; Lincoln Street and furnish safe and sound machinery. B. Go. V. Gox (1896) 48 Neb. 807, 67 N. Columbus, C. & I. C. B. Co. v. Troesch W. 740; Anderson v. Beivnett (1888) (1873) 68 111. 545, 18 Am. Rep. 578. 16 Or. 515, 19 Pac. 765; Missouri P. B. In other Illinois cases the phrases used Co. V. Crenshaw (1888) 71 Tex. 340, 9 in regard to railway companies are S. W. 262 (approving a charge that "highest degree of vigilance" [Chicago "the care to be used is to be considered & A. B. Co. v. Shannon [1867] 43 111. with reference to the risk to be in- 339 ) , and, a "high degree of care" curred, and must be reasonably propor- [Toledo, W. & W. B. Co. v. Fredericks tioned to such risk) ; Groker v. Pusey & [1874] 71 111. 294). These statements J. Co. (1900) 3 Penn. (Del.) pt. 1, p. seem to be inconsistent with that of the 1, 50 Atl. 61 ; Trihay v. Brooklyn Lead Illinois court of appeals in a very re- Min. Co. (1886) 4 Utah, 468, 11 Pac. cent case, where it was laid down that 612; Stockwell v. Chicago & N. W. R. the master is not bound to exercise a Co. (1898) 106 Iowa, 63', 75 N. W. 665. "high degree" of diligence. Wabash B. It has, however, been held that an in- Co. v. Farrell (1898) 79 111. App. 508. struction that it was the duty of the ''Ashland Goal & I. R. Go. v. Wal- defendant to exercise that degree of care, lace (1897) 101 Ky. 626, 42 S. W. 744, caution, and vigilance which the cir- Rehearing denied in 101 Ky. 644, 43 8. cumstances justly demanded is objee- W. 207. An instruction that a mine- tionable as submitting to the jury, as owner must use "all appliances readily the standard of care required, their attainable, known to science, for the own opinion as to what caution and prevention of accidents arising from diligence were demanded by the circum- the accumulation of gas or other ex- stances of the particular case. The plosive substances in the mine," was ap- trial judge should state that ordinary proved in Western Coal t& Min. Co. v. care is the standard, and then define Berberich (1899) 36 C. C. A. 364, 94 what ordinary care is. Texas Midland Fed. 329. B. Co. v. Taylor (1898; Tex. Civ. App.) 'McGregor v. Reid, M. & Co. (1898) 44 S. W. 892. 76 111. App. 610 (master bound to use 2ii MASTER AND SERVANT. [chap. ii. or engaged in the iDrepnration, storage, or handling of explosive and inflammable substances,^ or using steam-hoilers,^" or using electrical appliances.-^^ "Ki'i'iit oare"). In Wise v. Ackcrman 391, 39 L. ed. 464, 15 Sup. Ct. Rep. 464. (IS'.lii) 76 Jld. 37.5, 2.5 Atl. 424, the "Per.soiis and corporations using dan- court held that, as an cU'vator is a dan- gerous and explosive chcuiicals in ex- gorous machine in nia.ny re.spects, an periniental processes are charged with employer is bound to exercise "great the highest degree of care to prevent ac- care" to render "as free from danger cident and injury to others. The law as careful foresight and precaution may imposes upon them the employment of reasonably dictate" an elevator which all reasonable safeguards against dan- is intended primarily for freight, but ger from explosion. Not only should which employees are authorized to use. the machinery be safe, but all persons A contrast was dravsTi between such an engaged in working about it should be elevator and freight elevators which informed of the dangerous character of servants are allowed to use as mere li- the appliances and material used." censees, in which case they can only de- Decatur Cereal Mill Co. v. Boland mand the exercise of "ordinary" care. (1900) 95 111. App. 601-604. It may " "All occupations producing articles properly be found to be negligence >to or works of necessity, utility, or eon- carry dynamite and caps in sawdust, in venience may undoubtedly be carried an exposed condition, on a locomotive, on, and competent persons familiar where they are unpiotected from with the business and having sufficient sparks. Schuartz v. Shidl (1898) 4.5 skill therein may properly be employed W. Va. 40.5^, 31 S. E. 914. Compare, upon them; but in such cases, where also, Myrberg v. Baltimore £ S. Min. cG the occupation is attended with danger Reduction Co. (1901; Wash.) 65 Pac. to life, body, or limb, it is incumbent 539, where it was held that the expos- on the promoters thereof and the em- ure of dynamite to the weather for two ployers of others thereon to take all months, within a few feet of the en- reasonable and needed precautions to trance to defendant's mine, where plain- secure safety to the persons engaged in tiff afid other employees were daily re- their prosecution, and for any negli- quired to pass,' constituted negligence, gence in this respect, from which injury (The evidence was that exposure ren- follows to the persons engaged, the pro- dered the dynamite more liable to ex- moters or the employers may be held plode. ) "What is due oare and ordi- responsible, and mulcted to the extent nary diligence will much depend on the of the injury inflicted. . . . Oecu- kind of business which is carried on, pations, however important, which can- and the sort of material which is han- not be conducted without necessary died. The proprietor of a powder mill danger to life, body, or limb, should not must exert more precaution than the be prosecuted at all without all reason- master of a blacksmith shop. So, in able precaution.? against such dangers such an establishment as that carried afforded by science. The necessary on by the defendants below, — in refin- danger attending them should operate ing oil from crude petroleum, a. mate- as a prohibition to their pursuit with- rial highly inflammable and explosive, out such safeguards. Indeed, we think — we are bound to examine the question it may be laid down as a legal prin- of negligence with a regard to this cir- ciple that, in all occupations which are cumstance." Ardesco Oil Co. v. Oil- attended with gre;it and unusual dan- soti (1869) 63 Pa. 146. ger there must be used all appliances ^° Texas ^D SERVANT. [chap. iV. such as can, with reasonable care, be used "without danger except such as may be reasonably incident to tlio business,"^ or "without more danger than is ordinarily incident to the business."* The mas- ter is under no obligation to provide against any special risks incident to the peculiar manner in which the servant may perform the contract of sen'ice.^ Xor is he required to guard the servant against dangers of which the servant himself is equally or more competent to take no- tice, and against which he is guarding himself more effectually than could anyone else.^ "Something," as has been remarked, "may be left to the sense and volition of persons having intelligence."* All ^^yormell V. Maine G. R. Go. (1887) it may suffer through the reckless 79 Me. 397, 10 Atl. 49. handling of freight by the employees. 'Chicago <& 0. W. R. Go. v. Arm- Ghicago, R. I. & P. R. Co. v. Becher strong (1895) 62 111. App. 228. (1890) 38 111. App. 523. The mainte- * Murphy v. (Jrccleg (1888) 146 Mass. nance of a trap door which is fre- 196, 15 N. E. 054 (servant attempted to quently opened within 6 feet of the car- go through a dark passage in a building penter's bench where a. servant works under construction, without a, light, is not negligence. The abnormal dan- and fell into an opening). Compare § ger of such a door arises from a cause 26, note 4, subd. 4, ante. essentially the same as that which may 'Texas & P. R. Co. V. Eason (1899) render any instrumentality insecure, 34 C. C. A. 530, 92 Fed. 553 (eulpabil- viz., the servant's failure to use ordi- ity not predicable of the omission of nary precautions in moving from the a section foreman to direct his subordi- place of safety which he occupies, nates to desert a hand car when a train Kupp v. Riimmel (1901) 199 Pa. 90, is so close that there is no time to get 48 Atl. 679. There can be no recovery it off the track ) . for the death of an old and experienced ° Couch V. Charlotte, G. & A. R. Go. conductor of a coal train on a gravity (1884) 22 S. C. 557 (leaving waterway road, in a collision caused by his al- through a roadbed not negligence as re- lowing his section of cars to proceed gards a section hand who fell into it after it had been drawn up an inclined while pushing a hand car) . Negligence plane, during a storm, instead of look- eannot be predicated of the maintenance ing to see if the preceding sections had of a cattle chute in close proximity to gone ahead or had stopped, as was cus- the track, unless "it is dangerous to ternary on stormy days, to be doubled trainmen when they are exercising up before proceeding. Monies v. Dela- what is, under the particular circum- ware & H. Canal Co. (1891) 141 Pa. stances, ordinary care." ffeto YorTc, G. 632, 21 Atl. 733. In a ease where it 6 St. L. R. Go. V. Ostman (1896) 146 was denied that a railway company was Ind. 452, 45 N. E. 651, Reversing on bound to give a servant hired to clear rehearing (1895) 41 N. E. 1037. The snow from a track any special warn- fact that a machine may be dangerous ing as to the movements of trains on if improperly used, or that it actually the adjoining track, the court said: injures its operator, is not the test of "It is a fair presumption, not only that the master's liability. If the machin- men take the risks at their employment, ery is of ordinary character, and such but that they are competent to keep as can, with reasonable care, be used themselves out of manifest and unnec- without danger to the servant, it is all essary exposure to danger. It is ar- that-can be required of the master, gued that the storm made the situation Smith V. Foster (1901) 93 111. App. one of unprecedented peril to Nye and 138 (emery wheel burst), quoting doc- his fellows, and the court therefore trine enunciated in Chicago, R. I. & P. could not say, as matter of law, that R. Go. V. Lonergan (1886) 118 111. 48, the railroad owed no unusual duty for 7 N. E. 55. A railway company is not the protection of its employees. But bound to make a door for a freight car the situation was no more unprece- so strong and stable as to be capable of dented for one than for the other, and resisting any kind of heavy blow which the danger, though greater in degree, I 30a] RELiAiJCfi 0^ OAHE BY OtHERg. ?5 instructions which contravene or ignore this principle are errone- ousJ A proposition of equivalent import, so far as the immunity of the master is concerned, is that a servant "assumes the risk of all dangers, was no diflferent in kind from that un- operation of their roads, for the reason der ordinary cireumstanees, and the that they are 'dangerous to the persons more manifest the danger the more the operating the trains.' Indeed, the employer was entitled to rely on the whole business of operating trains is presumption that the employee would 'dangerous.' It is full of perils to not unnecessarily incur it." Nye v. those employed therein. Because there Pennsylvania R. Go. (1896) 178 Pa. is danger, it does not follow that the 134, 35 Atl. 627. In Stringham v. companies are negligent as to the Stewart (1885) 100 N. Y. 516, 3 N. E. things from which the danger springs. 575, one of the facts emphasized was The instruction should have expressed that the elevator in question was safe the thought that, if the crane was dan- when used with ordinary care. See gerous to persons- operating trains in also Buffer v. Herman (1896) 66 111. the exercise of ordinary care, the de- App. 481 (employer not bound to an- fendant was negligent in constructing tieipate that an inexperienced employee it." In Pittsburgh d O. R. Co. v. Sent- will put his hand under the cap cover- meyer (1879) 92 Pa. 276, 37 Am. Rep. ing the knives of a planing machine) ; 684, the trial Judge told the jury that Young v. Burlington Wire Mattress Co. if they believed that it was required of (1890) 79 Iowa, 415, 44 N. W. 693 (re- the employees of the company of the covery denied for an injury due to un- same class as Sentmeyer, the injured guarded machinery, partly on the servant, to be on the top of freight cars ground that it could have been used, in while in motion, and the defendant per- the exercise of due care, with reason- mitted a bridge to be maintained over able safety) ; Fowler v. Chicago & N. its track, of a height insufficient to ai- W. R. Co. (1884) 61 Wis. 159, 21 N. low the safe passage of persons while W. 40 (use of a common passenger en- on the top of such cars, and that the gine for switching purposes denied to servant was knocked off, they might be negligent because it could be safely find that the injury of Sentmeyer was handled by men exercising due care) ; caused by the negligence of the com- McGain v. Chicago, B. & Q. R. Co. pany. The court said this charge (1896) 22 C. C. A. 99, 40 U. S. App. "amounts to an instruction that the de- 181, 76 Fed. 125 (verdict for the de- fendant was bound to have all the fendant rightly directed where an en- bridges crossing its road of such a gine wiper placed his bare hand upon a height that whether its employees were splinter attached to the driving wheel careful or negligent no damage could ck an engine, 6 inches long and project- result to them therefrom. But what is ing from % to I inch beyond the tire, the logical result of a doctrine such as for the purpose of supporting himself this? Is it not that the company must in cleaning the engine, when the smooth not only guard its servants from prob- surfaces of all the other parts of the able, but also from possible, dangers, engine were open to his use for the pur- and that it must place no dependence pose). on their care and skill, even in the mat- ' In Gould V. Chicago, B. & Q. R. Go. ter of their own preservation and per- (1885) 66 Iowa, 590, 24 N. W. 227, it sonal safety? That it must provide was held error to charge the jury that, against their very negligence, and be- if they found that a water column was come an insurer of their limbs and placed in such close proximity to the lives? We need not say this will not tracks as to be dangerous to the per- do; that neither natural nor artificial sons Operating the trains, they would persons can bear a burden such as this, be justified in finding that the defend- neither ought they so to do. When ants were guilty of negligence in the men are hired, something must be pred- erection and location of the column, icated of their judgment and prudence. The court said : "It is not true that a and hence, when the employer furnishes railroad company is to be regarded as them with tools and appliances which, negligent in erecting or maintaining though not the best possible, may, by contrivances or things for use in the ordinary care, be used without danger. f6 itASTEil ANt) SllRVANf . tcHAP. IV. however they may arise, against which he may protect himself by the exercise of ordinary observation and care."* Two important applications of the principle are that a master is entitled to conduct his business on the assumption that his servants vnll make use of appliances furnished by the master for the special purpose of preventing accidents like the one which caused the injury in suit,^ and on the assumption that any duty which is legitimately cast upon the servant, and having for its object the maintenance of the place of work or machinery in suitable condition, will be properly performed.'" h. Dangerous structures above or beside railway tracks. — That there is room for a considerable diversity of views in regard to the practical application of the rather vague principle under discussion is indicated by no class of cases in a more striking manner than by those which deal with accidents caused by dangerous structures above or beside railway tracks. Some courts have concluded that, as to a servant who under- stands the conditions, negligence cannot be predicated of the main- tenance of such structures, for the reason that he is presumably able, under all circumstances, to avoid coming into collision with them he has discharged his duty, and is not er, furnishing the ordinary appliances, responsible for accidents." It is a mis- and one of them is injured in conse- direction to state without qualification quence of their pursuing a method of that, if the unboxed machinery which their ovra for piling the barrels, for the caused the injury was dangerous under reason that the appliances furnished tne circumstances in which the plaintiff were not suitable for the place. It is was operating it, the defendant was neg- their duty to make complaint when they ligent. Meyer v. Meyer (1899) 86 111. ascertain the insufficiency of the appli- App. 417. ances, and procure new ones. Ramsey 'Pittsburgh & G. R. Go. v. Sentmeyer v. Rohin (1889) 16 Sc. Sess. Gas. 4th (1879) 92 Pa. 276, 37 Am. Eep. 684. series, 6. 'For example, an electric light com- "The owner of a sawmill is not pany which, by means of a cut-off guilty of negligence toward an employee switch, the use of which the plaintifl in charge of a saw, in allowing dirt to knew, had guarded a lineman absolutely accumulate about the saw so as to clog against danger from the wires coming its frame and slides and prevent its in contact with those of other compa- working properly, when it is the duty nies, is not liable for an injury arising of such employee to clean the saw, and from that cause. Garr v. Mancnestcr no one else operates it. Johnson v. Electric Co. (1900) 70 N. H. 308, 48 Hovey (1894) 98 Mich. 343, 57 N. W. Atl. 286. So, an electric light company 172. A railroad company is not liable is not liable for an injury received by for injuries to one of its own brakemen, an experienced lineman in handling caused by a defect in the condition of live electric wires with his bare hands, the brake under his charge. Illinois d where gloves have been provided which, C. R. Go. v. Jewell (1867) 46 111. 99, if used, would have enabled him to do 92 Am. Dec. 240. A verdict for a miner the work in safety. Junior v. Missouri injured by the fall of the roof of a pas- Elecfric Light & P. Go. (1895) 127 Mo. sage which he was excavating, owing to 79, 29 S. W. 988. No fault is imputable the want of proper propping, is not war- to a brewer, where he sends some serv- ranted where the evidence is that it was ants to deliver beer barrels to a custom- the duty of the employer to supply § 30a] RELIANCE ON CARE BY OTHERS. 77 by keeping a proper lookout." In the New Jersey case cited below, the court expressly rejected the contention that the action was main- tainable because the servant was engrossed in his duties and failed to observe his peril.^^ Others arrive at what is practically the same re- sult by means of the theory that, even if the maintenance of the structures implies culpability, it must always be inferred that a serv- ant who knew or ought to have known of the risk was able to protect himself, and was therefore negligent if he failed to do so.^^ Under tills theory also, the servant's position does not seem to be in any wise improved by the fact that his attention was engrossed by his duties. ■''' The same view seems to be taken in Alabama. -^^ The results of a doctrine like that applied in tlie cases so far cited are manifestly the same as if the servant's duty to exercise care were not taken into account at all, and his inability to maintain the action referred to the theory of an acceptance of the risk. In fact, all the decisions cited are piit partially upon that ground. A more merci- ful and more rational doctrine is that the maintenance of these struc- tures is prima facie a breach of duty, but that, at all times after the wood for the purpose of propping the (1885) 81 Va. 188, 59 Am. Rep. 654; roof, and that this duty had been per- Chesapeake & 0. R. Co. v. Hafner formed, and that it was the duty of the (1894) 90 Va. 621, 19 S. E. 166 (1898) miners themselves to put up the props, 96 Va. 528, 31 S. E. 899. This is an and to decide when they should cease extreme case, as the bridge was only 28 excavating and leave the pillars. Cook inches above the top of the car, and the V. Bell (1857) 20 Sc. Sess. Cas. 2d se- brakeman had ju.st responded to a sud- ries, 137. An instruction which makes den call to apply the brakes, the place of work in a mine an impor- " See facts stated in Chesapeake <£- 0. tant inquiry, but states that, notwith- R. Co. v. Hafner (1894) 90 Va. 621, 19 standing the accident may have been in S. E. 166 ( 1898) 96 Va. 528,31 S. E. 899, an entry, yet the defendant was not lia- supra. Much of what was said by the ble if, by general usage, or for any other court seems to amount to something very reason, it was plaintiff's duty to look like a complete retractation of what had after the roof, is not erroneous. Taylor been said in Beard v. Chesapeake & O.R. V. Star Coal Co. (1899) 110 Iowa, 40, Co. (1893) 90 Va. 351, 18 S. E. 559, ag 81 N. W. 249. to the effect of the diversion of the serv- '^^ Baylor v. Delaware, L. & W. R. Co. ant's attention, though the two cases (1878) 40 N. J. L. 25, 29 Am. Rep. 208; may stand together on the ground that, Baltimore d- 0. R. Co. v. Strieker in the earlier one, the accident was (1878) 51 Md. 57, 34 Am. Rep. 291; proximately caused by a defective brake. Pittsburgh & C. R. Co. v. Sentmeyer " In Louisville & N. R. Co. v. Hall (1879) 92 Pa. 276, 37 Am. Rep. 684. (1888) 87 Ala. 708, 4 L. R. A. 710, 6 ''^Some remarks on the preposterous So. 277, and Louisville & N. R. Go. v. standard of vigilance prescribed for the Banks (1894) 104 Ala. 508, 16 So. 547, servant by cases of this type will be the doctrine was laid down that a serv- found in § 63b, post. ant is guilty of contributory negligence " This is undoubtedly the conception if through inattention or forgetfulness of the court in the Alabama cases cited he fails to inform himself as to the po- in note 4, infra, and seems to express sition of the bridges on the line, after he the point of view in three Virginia has been put on inquiry by his supe- cases: Clark v. Richmond d D. R. Co. riors, or fails to take the necessary (1884) 78 Va. 709, 49 Am. Rep. 394; steps to avoid being injured. Sheeler v. Chesapeake & 0. R. Co. 78 MASTER AND SERVANT. [chap. iv. servant has become chargeable with a knowledge of their position and characteristics, he must avoid them at his peril under normal cir- cumstances, when there is nothing to divert his attention. ^^ But the applicability of this doctrine has in one case been denied under cir- cumstances which have brought the court very near the position taken in those decisions which have been already referred to.^^ The con- verse principle deduced from this conception is that a train hand who, at a time when he is not required to do so, either by the orders of his superiors or by the demands of an emergency arising in the manage- ment of the train, stands upon a car which, as he knows or ought to know, is too high to leave room to enable him to pass safely a bridge which the train is about to reach, is, as matter of law, guilty of con- tributory negligence.-'* Still another theory is that the maintenance of such structures always warrants the inference of negligence on the company's part, and that the contributory negligence of the servant, if relied upon as a defense, must always be established by specific evidence unaided by any such presumptions, whether absolute or qualified, as those which arise out of the doctrines adverted to in the preceding paragraphs. As adherents of this theory it is probably permissible to cite all the courts whose decisions are cited in §§ 69a and YOa, post. Such a point of view, of course, renders it still more impossible than under the Kentucky doctrine to debar the servant from recovery, as a matter of law, for the reason that he did not remember the precise position of the train with regard to the particular bridge which caused his injury.-*^® ^° In Cincinnati R. Co. v. Sampson can be no recovery.'' This decision was (1895) 97 Ky. 71, 30 S. W. 12, and quoted with approval in Southern R. Louisville d N. R. Co. v. Cooley (1898) Co. v. Duvall (1899) 20 Ky. L. Rep. 20 Ky. L. Rep. 1372, 49 S. W. 339, the 1915, 50 S. ^N. 535, and therefore repre- eompany was held to be guilty of wilful sents the views still prevailing in Ken- neglect as to a brakeman who failed to tucky. stoop because his attention was diverted ^^ Southern R. Co. v. Duvall (1899) by an emergency requiring prompt ac- 20 Ky. L. Rep. 1915, 50 S. W. 535; tion. See also Nance v. Keuport Derby v. Kentucky C. R. Co. (1887) 9 News & M. r. R. Co. (1891) 13 Ky. L. Ky. L. Rep. 153, 4 S. W. 303; Jones v. Rep. 554, 17 S. W. 570. Louisville & N. R. Co. (1885) 82 Ky. " In Hughes v. Cincinnati, N. 0. & T. 610. R. Co. (1891) 91 Ky. 528, 16 S. W. » On this ground the plaintifif was al- 275, where, although brakemen were lowed to recover in Wallace v. Central compelled to be on the tops of cars in Vermont R. Co. (1893) 138 N. Y. 302, passing through a certain tunnel, so 33 N. E. 1069, the effect of which, ac- that they might control the speed of the cording to two later cases, is that a train, tlie court laid it down that "if train hand engaged in the perfonnance the deceased, knowing he could not pass of some duty which distracts his atten- through these tunnels standing upon the tion cannot be adjudged negligent, as top of the car, neglected to take the a matter of law, because he is, for the usual precaution of s.itting down, there time being, unmindful of the proximity § 30b] RELIANCE ON CAKE BY OTHERS. 79 The writer has no hesitation in expressing his opinion that, when the ordinary conditions of traffic and the circumstances nnder which servants are often obliged to do their work are taken into account, a railway company ought not to be considered free from culpability if the track and its appurtenances are laid out on the assumption that the attention of trainmen will never be diverted at times when they need all their faculties to enable them to avoid danger, or that the want of light or inclement weather may not render the task of self- protection so unusually difficult as to be impossible. It follows, therefore, that just as an apparatus designed to support a heavy weight is not adequate unless it is strong enough to support the heav- iest weight which will be laid upon it in the course of the master's business, a structure above or near the track is not a suitable one un- less it is so placed and arranged that a trainman can perform with reasonable safety any rightful function connected with his duties, at any time during the twenty-four hours, and in any weather that is likely to be encountered on the railway in question, even though his attention may be in some measure diverted from the task of self-pro- tection by some special emergency which produces a more or less com- plete forgetfulness of the perils by which he is surrounded. See, further, § 63, post. 30.b. — and by each servant to avoid injuring Ms fellow servants. — In another class of cases the theory of the decision in the master's favor is that his duty is fulfilled if the instrumentalities furnished are reasonably safe so long as they are carefully used by the fellow- servants of the employee whose security depends upon their quality.^ of a certain structure to the track. [18951 88 Hun, 359, 34 N. Y. Supp. Benthin v. lSIe^c York G. & B. It. R. Go. 824 ) , the ground upon which recovery (1897) 24 App. Div. 302, 48 N. Y. was denied was simply that the evidence Supp. 503; Broivn v. New York G. & B. was not sufficient to show that the serv- R. R. Go. (1899) 42 App. Div. 548, 59 ant's death was due to the bridge. In N. Y. Supp. 672. The Wallace Case, Greenlea.f v. Duhnqne & S. G. R. Go. seems to be, upon the facts, inconsistent (1871) 33 Iowa, 52, where a brakeman with an earlier ruling by the supreme was injured by the spout of a water court in Fitzgerald v. New York G. & tank, the court observed that, if the B. R. R. Go. (1891) 59 Hun, 225, 12 N. service to be performed by him was of Y. Supp. 932, where it was laid down a character to require that his exclusive that a brakeman who is aware that attention be fixed on it, and that he there is a low bridge in a certain place, should act with rapidity and prompt- and that there are no warning signals ness, it could hardly be expectei that to remind him of its existence, must, at he should always bear in mind the ex- his peril, take proper precautions to istence of the defect, or be prepared at avoid being injured by it, and cannot re- all times to avoid it. cover for an injury caused by it, on the ^ Burke v. Wilherhee (1885) 98 N. Y. ground that the company is under a 562, followed in Goppins v. New York 0. statutory duty to provide the signals. & H. R. R. Co. (1887) 43 Hun, 26, where On the final appeal of this case ( [1897] it was said that "it may not be left to 154 N. Y. 263, 48 N. E. 514, Reversing the jury to say what switcnes, what 80 MASTER AND SERVANT. [chap. IV. Unless the work is of such a nature that a prudent regard for the safety of the servants indicates that they should receive special in- structions, or tliat, while doing it, they should be placed under the contix)l of a skilled overseer, the master has a right to assume that, where he gives them a task to perform, and leaves the method of per- fonnance to their own selection, they will select a reasonable and proper method for the performance of their task.^ In so far as the doctrine now under consideration is applicable to cases of this type, it manifestly overlaps the domain of the familiar principle, to be discussed in the third volume of this treatise, — viz., that a servant cannot recover for injuries proximately caused by a co- servant's carelessness in handling the agencies supplied by the master. 31. Negligence inferable where instrumentalities furnished cannot be safely used by servants exercising ordinary care. — The second of the propositions formulated in § 28, ante, carries with it the inference that there is negligence on the master's part if the business, as con' ducted, will "inflict damage upon those who are guilty of no neglect of prudence."^ The fact that a dangerous machine could be safely patented articles, or contrivance shall be used by a railroad company in order to escape liability for injury to an em- ployee caused by the negligence of a co- employee." Alford V. Metcalf Bros. & Co. (1889) 74 Mich. 369. 42 N. W. 52 (the use of a. plank, instead of a skid with hooks, on which to unload boxes from an elevator to trucks in an alley adjoining, is not, in itself, negligence). An employer is not negligent, as mat- ter of law, becau.se of the fall of a scaf- fold which was adequate to the work for which it was originally erected, but proved inadequate to an extra strain which was put upon it by the negligence of fellow servants, and was not contem- plated when it was built. Chicago Architectural Iron Works v. Nagel (1898) 80 111. App. 492. - Karr Supply Co. v. Kroenig (1897) 167 111. 560, 47 N. E. 1051, Reversing 63 111. App. 219 (master not liable for injury caused by attempting to lower a heavy cylindrical tank into a basement by a method which the plaintiff knew to be dangerous without a larger num- ber of hands) ; Spencer v. Ohio & il. It. Co. (1892) 130 Ind. 181, 29 N. E. 915 (no action maintainable where a serv- ant ordered to clean an engine at a time when it is standing still on the track goes under it, and is injured by its being put in motion). When a. servant has received an injury through a defective appliance, the master cannot escape lia- bility on the ground that another serv- ant might, by the use of some unusual means, hare preventea tne accident. Texas P. It. Co. v. Johnson (1890) 70 Tex. 421, 13 S. W. 463. There a tram was derailed because Oie spring of a switch was not strong enough to throw the point to the main rail and hold it there when the lever indicated that the rails were in proper position for the pas- sage of cars. The contention of the de- fendant was that some employee might have placed the switch rail in proper position by the use of an axe or in some other way, and that the injury was therefore proximately due to the negli- gence of a fellow servant. ^Diamond State Iron Co. v. Giles (1887) 7 Houst. (Del.) 557, II Atl. 189; Bannah v. Connecticut River R. Co. (1891) 154 Mass. 529, 28 N. E. 68a (railway company, although not bound to have the distance between a switch rod and the ground the least that will admit of the working of the switch, is required to use reasonable care in seeing that the place is such that employees necessarily passing over it can do so safely in the exercise of due care) ; Goodrich v. i\^etc York C. & R. R. R. Co. (1889) 116 N. Y. 398, 5 L. R. A. 750, 22 N. E. 397 (railway company liable § 32] RELIANCE ON CAKE BY OTHERS. 81 worked by a careful man will not remove the liability from the mas- ter.^ In estimating the effect of this doctrine i!: is important it should be remembered that a master is not entitled to rely up in the assumption that a servant will take precautions to avoid dangers of which he has no knowledge." An inference drawn from this doctrine in some ca'jes is that the master is culpable if the con-otruction of his machinery or the location of dangerous structures is such that the slightest indiscretion on the part of a servant may prove fatal.* If thia conception were consistently carried out, it is clear that servants would be allowed to recover in some large and important classes of cases,^ — notably those in which the instrumentalities which caused the injuries were uncovered machinery, low overhead bridges on railway lines, structures dangerously near to railway tracks, and unblocked frogs and guard rails. But such cases are controlled, at least in some courts, by other considerations the practical effect of which is to re- quire the servant to exercise at his peril a degree of care which is en- tirely beyond the capacity of ordinary men. See §§ 30a, 30b, ante, and §§ 54, 63, 69, 70, 72, post. 32. Master entitled to rely on the assumption that due care will be used by strangers with whom he requires his servant to work. — Where an employer's own servants are required, in the course of his business, to work in combination with other parties for the performance of something in which he and those parties have a common interest, it is for injuiy caused by bumpers of insuf- the same effect, Shaffer v. Haish (1885) ficient rigidity and strength to sustain, 110 Pa. 575j 1 Atl. 575; Mississippi without yielding, the shock of a. car River Logging Co. v. Schneider (1896) backed up, without undue speed, against 20 C. C. A. .390, 34 U. S. App. 743, 74 it to be coupled) ; Texas P. R. Co. v. Fed. 195; Chicago Anderson Pressed McAtee (1884) 61 Tex. 695 (car brake Brick Co. v. Sohkowialc (1892) 45 111. so defective as not to operate effectually App. 317, Affirmed in (1894) 148 111. with proper use) . In Norfolk & W. R. 573, 36 N. E. 572, and the cases as to Co. V. Brown (1895) 91 Va. 668, 22 S. low bridges cited in § 30a, b, ante. E. 496, the court qualified its ruling ^ Boardman y. Brown (1887) 44 Hun, that the use of cai-s with couplings of 336. unequal height is negligence by the pro- 'Hawkins v. Johnson (1885) 105 Ind. viso that the difference in height should 29, 55 Am. Rep. 109, 4 N. E. 172. This not be so great as to allow the bumpers principle is also assumed in the low- to miss each other altogether. "It is a bridge cases cited in § 30a, b, ante. part of the implied contract between ■* Toledo, W. & W. R. Co. v. Freder- master and servant (where there is only icks (1874) 71 111. 294 (couplings rad- an implied contract) that the master ically defective where the drawbars are shall provide suitable instruments for so short as to endanger an employee the son'ant with which to do his work, going between the cars) ; Chicago, B. & and a suitable place where, when exer- Q. R. Co. v. Gregory (1871) 58 III. 272 cising due care himself, he may perform (mail-catcher near the track) ; Nadau it with safet}', or subject only to such v. White River Lumber Co. (1890) 76 hazards as are necessarily incident to Wis. 120, 43 N. W. 1135 (uncovered the business." Sullivan v. India Mfg. cog wheels), Qo. (1873) 113 Mass. 396. See also, to Vol. I. M & S.— 6. 82 MASTER AND SERVANT. [chap. IV. not negligence for him to act on the assumption that they will exer- cise proper care.^ ' In Foley v. Chicago & N. W. R. Co. (]882) 48 Mich. 622, 42 Am. Rep. 481, 12 N. W. 879, it was held that the rep- resentatives of a railroad switchman who had been sent by the defendant to switch a car owned by another railroad company, to be loaded with nitro-glycer- ine by the consignor of that company, and who was killed by an explosion caused by the negligence of the servants of that consignor, could not recover dam- ages. The court said: "The question, then, seems to be this: Whether de- fendant, in complying with a proper re- quest from another railroad company to nin for it a short distance one of its cars, to be loaded with an article which was safe when properly handled, but exceedingly dangerous when carelessly handled, was bound to assume that neg- ligence on the part of those handling it would occur, and bound to take meas- ures for the protection of its servants on that assumption. And if this ques- tion shall be answered in the affirmative, the further question will be presented: What measures of protection could the defendant take, short of absolute re- fusal to move the car at all? The switchman knew what was to be loaded, and had a general knowledge of its qualities; but more particular and spe- cific information to him on that subject would have been entirely without value. He was not to handle the nitro-glycerine, and he could exercise no control over the action of those who were. Caution from him on the subject would not be likely to receive attention from the men whose business it was and who handled it con- stantly. The only caution to decedent which could have been of the least serv- ice would be the caution to keep away altogether. If he was entitled to this, it necessarily follows that defendant should have refused altogether to move the car over its track. But it was not claimed on the argument that this could have been properly and eveu lawfully done." CHAPTEE V. OBLIGATORY QUALITY OF INSTRUMENTALITIES, CONSIDERED WITH REFERENCE TO THE RIGHT OF A MASTER TO CARRY ON HIS BUSI- NESS IN HIS OWN WAY. 34. Generally. 35. Master is not bound to adopt any particular instrumentalities or methods. a. Rule stated and illustrated. 6. Instructions required by the rule, c. Immaterial that the instrumentality adopted requires greater care in the handling. 36. Rationale of this principle. a. An application of the doctrine of assumption of risks. 6. Rendered necessary by the jury system of trials. c. Master not an insurer of the servant's safety. 37. Feasibility of th'j changes suggested; evidential significance of. 38. Negligence not inferable from the use of dissimilar appliances for the same purpose. 39. Master's duty to introduce new appliances. 40. General doctrine not a protection where the instrumentalities are of a pattern that is not reasonably safe. 41. — nor where they are specifically defective. 42. — nor where the risks incident to using them were not fully understood by the injured person. 34. Generally. — The general result of tlie authorities cited thus far is that the extent of the master's responsibility is measured and de- fined by these two fuadamental principles, — that he is bound to pro- tect his servants from exposure to unnecessary and unreasonable risks, so far as he can do so by the exercise of ordinary care, and that he is bound to provide such instrumentalities and to adopt such meth- ods that servants who exercise ordinary care will be able to perform their duties in reasonable safety. But these principles are, for practi- cal purposes, greatly qualified and restricted by the operation of the doctrines discussed in the three following chapters. It is not too much to say that the actual efiect of those doctrines, as applied by the courts to certain states of fact, has been to attach to the terms "unnecessary" and "reasonable safety" an arbitrary, legal signification which is to- tally different from that which they bear in the language of common life, Judged by the standards which that language naturally sug- 83 84 MASTER AND SERVANT. [chap. v. gests, many of the decisions to which we shall have occasion to refer — more especially those Avhich deny the servant's right to recover for injuries caused by low overhead bridges on railways and structures in close proximity to the track — can only be regarded as amounting to a virtual declaration that an employer may, without incurring lia- bility, maintain imminently and inherently dangerous instrumentali- ties which can be usually altered without serious difficulty or incon- venience, and which, under circumstances which will inevitably su- pervene with more or less frequency in the course of a ser\'ant's em- ployment, render it virtually impossible for him to escape injury by the exercise of any degree of care which can fairly be exacted from him. The first of these qualifying and restrictive doctrines which claims our attention is that every one has the legal "right to carry on a busi- ness which is dangerous, either in itself or in the manner of conduct- ing it, if it is not unlawful, and interferes with no rights of others, and is not liable to one of his servants, who is capable of contracting for himself and knows the danger attending the business in the man- ner in which it is conducted, for an injury resulting therefrom."^ The deduction drawn from this doctrine, viz., that "so long as the premises were maintained in a reasonably safe condition the defend- ants had the right to use their own judgment as to the material and the method of construction employed,"^ is on its face quite unexcep- tionable. It has led the courts to harsh conclusions mainly because they have, to a degree which the present writer ventures to think un- warrantable, excluded juries from the function of considering the question of fact involved in the limitation to which (as is shown by the above statement and many others of a similar tenor which occur in the cases cited in this chapter) the doctrine is STibject. 35. Master is not bound to adopt any particular instrumentalities or methods. — a. Rule stated and illustrated. — From the above-stated con- ^Ladd V. New Bedford R. Go. (1876) L. ed. 1114, 7 Sup. Ct. Rep. 1166; Sweet 119 Mass. 413, 20 Am. Rep. 331; S. P. v. Ohio Coal Co. (1890) 78 Wis. 127, Coombs V. yew Bedford Cordage Co. 9 L. R. A. 861, 47 N. W. 182; Tfee Sara- (1869) 102 Mass. 572, 3 Am. Rep. 506; toga (1898) 87 Fed. 349; Osborne v. Le- SulUvan v. India Mfg. Co. (1873) 113 Ugh Valley Coal Co. (1897) 97 Wis. Mass. 396; Hayden v. Smithville Mfg. 27, 71 N. W. 814; Casey v. Chicago, St. Co. (1861) 29 Conn. 548; Rothv. yortfi- P. M. & 0. R. Go. (1895) 90 Wis. 113, em Pacific Lumbering Co. (1889) 18 62 N. W. 624. Or. 20.5, 22 Pac. 842; Stone v. Oregon ^McCarthy v. Shoneman (1901) 198 City Mfg. Co. (1870) 4 Or. 52; Ouin- Pa. 568, 48 Atl. 493. The master has ard ^. Knapp-Stout <£ Co. Go. (1897) 95 the right to exercise a "reasonable judg- Wis. 482, 70 N. W. 671; WinJcJer v. St. ment and discretion." Morris v. Du- Louis Basket iG Bocc Co. (1897) 137 Mo. luth, S. S. & A. R. Go. (1901) 47 C. C. 394, 38 S. W. 921 ; Tuttle v. Detroit, G. A. 661, 108 Fed. 747 (phrase used in JI, 4; M. R, Cq, (1887) 123 U, S, 189, 30 sj^llabus written b^ court), ^ 351 MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 80 ception of the extent of the master's obligations is drawn the very im- portant practical deduction, constantly reiterated and applied, that he cannot be charged with a breach of the duties owed to his servants, nimply on the ground that a safer method or a safer instrumentality than that from which the injury resulted was available and might have been adopted by him.-' In other words, the question whether the particular machinery provided by a master is proper and suitable is to be determined by its actual condition, and not by comparing it with other machinery.- Or, as the doctrine may also be expressed in more general terms, evidence which merely tends to show that the particular accident which caused the injury might not have happened if a particular precaution had been taken goes for nothing, in consid- ering the question of legal liability on a charge of negligence.* ""That a method is less safe than v. Husson (1882) 101 Pa. 1, 47 Am. another does not make it improper to be Rep. 690, the trial judge had charged as used." Dynen v. Leach (1857) 26 L. J. follows: "If you believe that the de- Exch. N. S. 221, per Bramwell, B. A ceased was, under the eireumstanees of master "is not required to adopt any this case, subjected to such extraordi- particular method of construction, or nary risk, which the company could have any particular contrivance or device, in avoided, the company is liable." But order to be in the exercise of ordinary the supreme court rejected this theory, care." Chicago & E. I. R. Co. v. Dris- saying: "We cannot agree that the coll (1898) 176 111. 330, 52 N. E. 921, risk to which an employer subjects his Reversing (1897) 70 111. App. 91. A employee suffices to impose liability servant cannot recover for an injury re- upon the former as being extraordinary ceived in the discharge of his regular in character merely because the injury duties, when the apparatus which he in a particular case might possibly was required t^ use was of an approved have been prevented by some different and practical kind, was familiar to him, device. Almost all accidents could be and was perfect as to each of its parts, avoided if the special manner of their Murphy v. Ijake Shore d M. 8. R. Co. occurrence could be foreseen." To the (1896) 67 111. App. 527 (coupling de- same effect see Glover v. Meinrath vices not similar, and therefore harder (1896) 133 Mo. 292, 34 S. W. 72; Friel to couple). The furnishing or retention v. Citizens' R. Go. (1893) 115 Mo. 503, of an instrumentality of peculiar con- 22 S. W. 498 ; Muirhead v. Hannibal d struction, however great the resulting St. J. R. Co. (1888) 31 Mo. App. 578 danger may be, cannot be imputed as (former appeal [1885] 19 Mo. App. negligence. See Beaudin v. Central Ver- 634) ; Young v. Virginia & N. G. Constr. mont R. Co. (1891) 38 N. Y. S. R. 473, Go. (1891) 109 N. C. 618, 14 S. E. 58; 14 N. Y. Supp. 706. Innes v. Milwaukee (1897) 96 Wis. 170, "Wood V. Heiges (1896) 83 Md. 257, 70 N. W. 1064; Chicago <£■ G. W. R. Go. 34 Atl. 872. "No employer by any im- v. Armstrong (1895) 62 111. App. 228; plied contract undertakes that his build- Chicago, R. I. & P. R. Co. v. Lonegan ings are safe beyond a contingency, or (1886) 118 111. 41, 7 N. E. 55; Rush even that they are as safe as those of v. Missouri P. R. Co. (1887) 36 Kan. his neighbors, or that accidents shall not 129, 12 Pac. 582, and the cases cited in result to those in his service from risks the following notes to this section and which others would guard against more to § 38, post. The fact that there is a, effectually than is done by him. Nei- difference of opinion among experts as ther can a duty rest upon anyone which to the relative safety of two kinds of can bind to so extensive a. responsibil- apparatus is naturally regarded as eon- ity." Diamond State Iron Co. v. Giles elusive against the inference of culpa- (1887) 7 Houst. (Del.) 556,11 Atl. 189. bility, — as where an employer was held ' Augerstein v. Jones (1891) 139 Pa. not negligent towards an employee in 183, 2i Atl. 24. In Northern C. R. Co. using cross pieces to raise a platform, MASTER AND SERVANT. [chap. V. "It is not the duty of the master to furnish any particular kind of tools, implements, or appliances."* "The test is not whether the master omitted to do something he could have done, but whether in selecting tools and machinery for their use, he was reasonably prudent and careful ; not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be ap- plied."5 The true question for the jury is not whether the master could have done something to prevent the injury ; but whether he did anything which, under the circumstances, in the exercise of ordinary care and prudence, he ought not to have done, or omitted any precaution which a prudent and careful man would or ought to have taken.® although it might have been more easily accomplished by blocks and tackle. East St. Louis Ice & Gold Storage Co. v. Sculley (1895) 63 111. App. 147. Com- pare M'Gill V. Boioman (1890) 18 Sc. Sess. Cas. 4th series, 206, cited in § 38, post. *Bohn V. Chicago, R. I. & P. R. Co. (1891) 106 Mo. 429, 17 S. W. 580. 'Stringham v. Hilton (1888) 111 N. Y. 188, sub mom. Stringham v. Stewart, 1 L. R. A. 483, 18 N. E. 870. 'Leonard v. Collins (1877) 70 N. Y. 90; Hewitt v. Flint & P. M. R. Co. (1887) 67 Mich. 61, 34 N. W. 659. For other cases in which the principles stated in the text were applied, see Southern P. Co. v. Seley (1894) 152 U. S. 145, 38 L. ed. 391, 14 Sup. Ct. Rep. 530 (use of unblocked frogs not negli- gence as matter of law) ; Morris v. Du- luth, 8. S. & A. R. Co. (1901) 47 C. C. A. 661, 108 Fed. 747 (use of a piece of lumber 1 inch thicker, 6 inches wider, and 1 foot longer, than the customary blocking, to fill the space between a guard rail and a, main rail, is no evi- dence of negligence as to a brakeman who stumbles over it) ; Reichel v. New York C. & H. R. R. Co. (1892) 130 N. Y. 682, 29 N. E. 763 (negligence not in- ferable from the simple fact that the relative location of a water plug and an ash pit was such that an engine could take water and discharge its ashes si- multaneously) ; Oregon Short Line <& U. N. R. Co. V. Tracy (1895) 14 0. C. A. 199, 29 U. S. App. 529, 66 Fed. 931 (railway company is not required to clear its track of brush. It has the right to suffer it to grow to any extent, provided it does not lead the employees into an undisclosed danger) ; Gold- thwait V. Haverhill & G. Street R. Co. (1894) 160 Mass. 554, 36 N. E. 486 (tracks placed so close together and so curving in opposite directions that cars upon them will come together do not im- port culpability) ; Smith v. St. Louis, K. G. & N. R. Co. (1878) 69 Mo. 32, 33 Am. Rep. 484 (fact that there was an- other kind of rail of which a guard rail might have been constructed, which would have been safer for employees, and would equally have answered its purpose, held not to be sufficient to ren- der the company liable for an injury caused by its failure to use that other kind of rail) ; Brossman v. Lehigh Val- ley R. Go. (1886) 113 Pa. 491, 57 Am. Rep. 479, 6 Atl. 226 (master not bound to raise a low bridge) ; M'Ghee v. North British R. Co. (1887) 14 Sc. Sess. Cas. 4th series, 499 (railway company which changes a road line from a single line worked by horses to a double line worked by locomotives is not bound to pull down and rebuild a bridge for the mere reason that the alteration brings the stone work of the bridge danger- ously near the track) ; Chicago & E. I. R. Go. V. Driscoll (1898) 176 111. 330, 52 N. E. 921, Reversing (1897) 70 111. App. 91 (not negligence to have no butt post at the end of a stub switch) ; Grat- tis V. Kansas City, P. & G. R. Co. (1900) 153 Mo. 380, 48 L. R. A. 399, 55 S. W. 108 (maintenance of stub switch not negligence, though a split switch would probably have prevented a derailment) ; Ladd v. New Bedford R. Co. (1876) 119 Mass. 412, 20 Am. Rep. 331 (absence of cheek chain on railway cars; negligence not predicable of); S 35] MASTER'S EIGHT TO DO BUSINESS IN HIS OWN WAY. 87 The principle thus enunciated is available as a protection to the master, whether the conditions charged as negligence existed in the instrumentality as originally supplied, or were created by some Texas & P. R. Co. v. Minnidk (1893) 6 0. C. A. 387, 13 U. S. App. 520, 57 Fed. 3C2 (smoke stack on locomotive was of peculiar design and allowed sparks to escape) ; D'Arcy v. Long Is- land R. Co. (1898) 34 App. Div. 275, 54 N. Y. Supp. 553 (railroad company not liable for personal injuries sustained by an employee who was injured by the falling of a plank or iron plate extend- ing between a platform and a. car, while assisting to imload the ear, although it was not supplied with hooks or fasten- ings in order to render it impossible to slip from its place) ; Conway v. Ean- nihal & St. J. R. Go. (1887) 24 Mo. App. 235 (evidence not admissible to show that a derrick car might have been more safely run with the boom pointing to the rear) ; Hamilton v. Chicago, R. I. & P. R. Co. (1894) 93 Iowa, 46, 61 N. W. 415 (railway company not bound to supply hand cars of any particular pat- tern) ; Hayden v. Smithville Mfg. Co. (1861) 29 Conn. 548 (no obligation to fence machinery) ; Foley v. Pettee Maoh. Works (1889) 149 Mass. 294, 4 L. R. A. 51, 21 N. E. 304 (servant injured by putting his hand into cogwheels un- covered, but in plain sight, not entitled to recover simply because the machinery might have been made less dangerous by being covered) ; Roclc v. Indian Orchard Mills (1886) 142 Mass. 522, 8 N. E. 401 (where the question is whether defend- ant had given a minor servant instruc- tions as to the danger of the machine, it is proper to exclude evidence that a gate might have been put in front of the cot- ton-winding machine at small expense, or that the machine in question, and an- other article of machinery standing over 4 feet distant, might as well have been separated further ) ; Plunkett v. Dono- van (1891) 36 N. Y. S. R. 91, 12 N. Y. Supp. 454 (held error to submit to the jury the question whether it was neg- ligence not to furnish a guard to a ma- chine) ; Tovmsend v. Langles (1890) 41 Fed. 919 (leaving cogwheel uncovered not negligence per se) ; Kleinest v. Kun- hardt (1893) 160 Mass. 230, 35 N. E. 458 (no recovery where servant slipped on a wet and slippery floor and struck against an uncovered pulley) ; Feely v. Pearson Cordage Co. (1894) 161 Mass. 426, 37 N. E. 368 (similar facts) ; Cag- ncy V. Sannihal & St. J. R. Co. (1379) C9 Mo. 416 (railway company not liable because it uses a single former in its shops, instead of a double one, though the latter is safer) ; Jacobson v. Corne- lius (1889) 52 Hun, 377, 5 N. Y. Supp. 306 (omission of a counter shaft and a fast and loose pulley, which would have made it safer to connect and disconnect the power from a machine, does not con- stitute actionable neglisence) ; Joyce v. Worcester (1885) 140 "Mass. 245, 4 N. E. 565 (no recovery where servant was injured by the fall of a derrick used for drawing up the shoring planks from a sewer after it had been filled up, the contention being that hand power would have been safer than steam power) ; Rosa V. Volkening (1901) 64 App. Div. 426, 72 N. Y. Supp. 236 (negligence not inferable from the mere fact that a der- rielc which fell was not provided with guy ropes, and proved to be too light to accomplish the work for which the plaintiff and his coservants used it) ; Kemmerer v. Manhattan R. Co. (1894) 81 Hun, 444, 31 N. Y. Supp. 82 (em- ployer not liable for an injury to an em- ployee resulting from a collision between trains during a fog, although a better system for giving signals during fogs is in existence, where the one employed by it is reasonably safe) ; Berning v. Med- art (1894) 56 Mo. App. 443 (employer is not negligent because guards fur- nished for emery wheels used for cer- tain work are lighter than those for emery wheels used for other work, where a satisfactory reason for the difference exists, as shown by plaintiff's own evi- dence) ; Winkler v. St. Louis Basket & Box R. Co. (1897) 137 Mo. 394, 38 S. W. 921 (no recovery where brake which caused the injury was perfect of its kind, but was alleged to be more danger- ous than another pattern) ; Service v. Shoneman (1900) 196 Pa. 63, 46 Atl. 292 (negligence not inferable simply be- cause a boiler which burst might have been made safer by adding certain at- tachments) ; McCarthy v. Shoeman (1901) 198 Pa. 568, 48 Atl. 493 (em- ployer cannot be charged with negligence because a passageway and steps therein, in the basement of his store, on which the plaintiff fell, are cut out of the solid earth, instead of the walk being made 88 MASTER ANt) SERVANf. [chap. V. change In the method of usingJ A servant, therefore, will not be al- lowed to retain any verdict in his favor which is based on the hypoth- esis that negligence is imputable to the master because his instru- mentalities or methods do not answer to one or the other of the fol- lowing descriptive epithets and phrases: "Best;"^ "best known;"® "best possible;"^" "best of known or conceivable;"^^ "newest and best;"^^ "of the very best and newest device attainable ;"^^ "safest;"" "safest kno-wm;"!'^ "safest possible;"^' "in the safest pos- from stone, wood, or cement). A single Pa. 1, 49 Atl. 341; Louisville <& N. R. ladder of 120 feet in length, for the pur- Co. v. Orr (1882) 84 Ind. 50; Jenney pose of ascending and descending a, Electric Light & P. Go. v. Murphy shaft, was held not to be an improper (1888) 11.5 Ind. mQ, 18 N. E. 30; Chi- appliance, in O'Xeill v. Wilson (1858) cago, B. & Q. R. Co. v. Smith (1885) 18 20 Sp. Sess. Cas. 2d series, 427. Plain- 111. App. 119; Strattncr v. Wilmington tiff contended that several shorter lad- City Electric Co. (1901; Del.) 50 Atl. ders with landing stages should have 57 ; Burns v. Chicago, M. & St. P. R. been provided. For other cases to same Co. (1886) 69 Iowa, 450, 58 Am. Rep. effect, see also §§ 36, 39, post. Those 227, 30 N. W. 25; Wormell v. Maine C. collected in chapter vm., post, declar- R. Co. (1887) 79 Me. 397, 10 Atl. 49. ing the nonliability of railway com- ° Harley v. Buffalo Car Mfg. Co. panics for injuries due to permanent (1894) 142 N. Y. 31, 36 N. E. 813; conditions, such as low bridges, strvic- Spencer v. Worthington (1899) 44 App. tures near the track, etc., also should be Div. 496, 60 N. Y. Supp. 873 ; Walsh compared, though they are not all re- v. Commercial Steam Laundry Co. ferred directly to the principle now un- (1895) 11 Misc. 3, 31 N. Y. Supp. 833; der discussion. See also the cases as to Allison Mfg. Co. v. McCormiok (1888) instructions, in subsec. i, infra. 118 Pa. 519j 12 Atl. 273. Two Virginia cases carry the applica- ^° Hiclcey v. Taaffe (1887) 105 N. Y. tion of the general rule further than 26, 12 N. E. 286; Eldridge v. Atlas 8. many courts would be willing to go, ex- S. Co. (1890) 58 Hun, 96, 11 N. Y. cept in so far as the decisions might be Supp. 468; O'Hare v. Keeler (1897) 22 deemed justifiable on the distinct ground App. Div. 191, 48 N.'Y. Supp. 376. that the risks were known to and as- ^'^ Stringham v. Hilton (1888) 111 N. sumed by the servants. In Stewart v. Y. 188, sub nom. Stringham v. Stewart, Sewport Hews & M. Valley Co. (1890) 1 L. R. A. 483, 18 N. E. 870; Thorn 80 Va. 988, 11 S. E. 885, approved in v. New York City Ice Co. (1887) 11 N. Richmond & D. R. Co. v. Risdon (1891) Y. S. R. 845. 87 Va. 335, 12 S. E. 786, it was denied "^ Titus v. Bradford, B. & K. R. Go. to be negligence for a railway company (1890) 136 Pa. 618, 20 Atl. 517 (a mas- to maintain a coal chute which was a ter is not bound to adopt every novelty "mantrap," if it is of first-class con- in bridge construction) ; Illick v. Flint struction. In Robinson v. Dininny & P. M. R. Co. (1888) 67 Mich. 632, 35 (1868) 96 Va. 41, 30 S. E. 442, it was N. W. 708 (not negligence to maintain held that negligence was not predicable a bridge with the truss 2 feet 3 inches of the method of cleaning out an old from the sides of freight cars), shaft by excavating the debris from a '^^ Augerstein v. Jones (1890) 139 passage which entered it at the bottom. Pa. 183, 21 Atl. 24. ''Glover v. Meinrath (1890) 133 Mo. " Dynen v. Leach (1857) 26 L. J. 292, 34 S. W. 72. In this case, where Exeh. N. S. 221; Wormell v. Maine C. the risks incident to the use of a com- R. Co. (1887) 79 Me. 397, 10 Atl. 49; meal dryer were altered by the substi- Payne v. Reese (1882) 100 Pa. 301; tution of hot water for steam., it was Diamond State Iron Co. v. Giles (1887) held to be error to give an instruction 7 Houst. (Del.) 556, 11 Atl. 189. which allowed the plaintiff to recover "' Shadford v. Ann Arbor Street R. Co. unless he knew or ought to have known (1897) 111 Mich. 390, 69 N. W. 661. of the change. " Ghicapo Anderson Pressed Brick Go. 'Paijne v. Reese (1882) 100 Pa. .301: v. Sobkomah (1892) 45 111. App. 317. Kennedy v. Alden Coal Co. (1901) 200 35] MASTER'S felGHT T6 DO BUSINESS IN HIS OWN WAY. s:] sible condition ;"^'^ "best and safest;"^* "best, safest, or newest;"^" "most expensive;"^" "most approved ;"^^ "as safe as can be pro- vided ;"^^ "best and most improved ;"^^ "best and most approved;"^'' "latest, best and most approved."^^ A fortiori is a jury not war- ranted in finding for the plaintiff where there is no evidence that the alternative arrangements suggested would have been safer than those actually adopted, and it is apparent that the latter were reasonably safe.2« As a matter of procedure, the effect of tlie principle now under dis- cussion is that evidence going to show that some other kind of instru- mentality' would have been safer and better than that which caused the injury should be excluded.^^ h. Instructions required by the rule. — The subjoined cases indi- cate the bearing of the above-stated principle upon the correctness or incorrectness of instructions to juries.^* "Diamond State Iron Co. v. Giles (1887) 7 Houst. (Del.) 556, 11 Atl. 189. ^' Porter v. Hannibal d St. J. R. Co. (1879) 71 Mo. 66, 36 Am. Rep. 454. '" Mississippi River & Logging Co. V. Schneider (1896) 20 C. C. A. 390, 34 U. S. App. 743, 74 Fed. 195. ^'Bcrns v. Gaston Gas Coal Co. (1885) 27 W. Va. 285, 55 Am. Rep. 304. '^Hewitt V. Flint & P. M. R. Co. (1887) 67 Mich. 61, 34 N. W. 659; Jenney Electric Light & P. Co. v. Mur- phy (1888) 115 Ind. 566, 18 N. E. 30. ^■nart & C. Mfg. Co. v. Tima (1899) 85 111. App. 310. ''' Camp Point Mfg. Co. v. Ballou (1874) 71 111. 417. '' Kreider v. Wisconsin River Paper & Pulp Co. (1901) .110 Wis. 645, 86 N. W. 662. '^ Davis V. Augusta Factory (1893) 92 Ga. 712, 18 S. E. 974. In Illinois it has been laid down that the employer is not bound "to seek and apply every new in- vention, but must adopt such as is found, by experience, to combine the greatest safety with practical use." To- ledo, IF. & W. R. Co. V. Aslury (1877) 84 111. 429. But the standard desig- nated by the last clause of this state- ment has been explicitly condemned. Sappenfield v. Main Street & Agri. Paris R. Co. (1891) 91 Cal. 48, 27 Pac. 590. "'Nolan V. Montana C. R. Co. (1901; Mont.) 63 Pac. 926. The contention there was that, while a train of dirt cars was on a curve, a block and tackle should have been provided to guide the chain which pulled the plough by which they were unloaded. At the time of the accident the chain was simply laid in a groove in one of the stake sockets on the side of a car, and thus prevented from being pulled towards the inside of the curve. Compare also McGinnis v. Can- ada Southern Bridge Co. (1882) 49 Mich. 466, 13 N. W. 819. "' Kent v. Ta^oo <& M. Valley R. Go. (1899) 77 Mias. 494, 27 So. 620; Grava- dahl V. Chicago Ref. Co. (1899) 85 111. App. 342; Chicago d E. I. R. Co. v. Finnan (1899) 84 111. App. 383; Con- way V. Hannihal & St. J. R. Co. (1887) 24 Mo. App. 235. ^' Porter v. Hannihal & St. J. R. Co. (1879) 71 Mo. 66, 36 Am. Rep. 454 (ap- proving a charge to the effect that a railway company is not bound to pro- vide the "best and safest track," but only to use ordinarj' care in this re- gard) ; Kennedy v. 4 Were Coal Co. (1901) 200 Pa. 1, 49 Atl. 341 (charge approved was that the master was not bound to furnish the "best" appli- ances ) ; Heicitt V. Flint & P. M. R. Co. (1887) 67 Mich. 61, 34 N. W. 659 (ap- proving an instruction that "a railroad company is not bound to change its man- ner of using its side tracks") ; Auger- stein V. Jones (1891) 139 Pa. 183, 21 Atl. 24 (instruction erroneous by which the jury was told that if the accident could have been prevented by screwing down a heavy iron plate over an emery wheel which burst, the plaintiff would be entitled to recover) ; Muirhead v. Hannibal £ St. J. R. Co. (1885) 19 Mo. App. 634 (instruction held erroneous 90 MASTER AND SERVANT. [chap. V. c. Immaterial that the instrumentality adopted requires greater care in the handling. — If tlie facts are such as to bring the case with- in the operation of the general principle, culpability will not be predi- cated simply from the fact that the appliances objected to cannot be which was based on the theory that evi- dence showing the manner in which a derrick car was run in a wrecking train, viz. — with the boom pointing forwards — was not the safest way in which to run it, was proof of negligence) ; Lyttle v. Chicapo £ W. M. R. Go. (1890) 84 Mich. 289, 47 N. W. 571 (held proper to charge a jury that a railroad company is bound to furnish for its employees and the transaction of its business rea- sonably safe and proper rolling-stock and locomotives, and appliances thereto, and a competent engineer and fireman, considering all the circumstances and nature of the employment, but is not bound to furnish the best machinery or men that can be procured) ; Tabler v. Hannibal i« St. J. R. Co. (1887) 93 Mo. 79, 5 S. W. 810 (instruction erroneous which directs the jury to find for the plaintiff if the defendant railway com- pany used a rope, instead of a chain, for a coupling between two of the cars of a wrecking train) ; Muirhead v. Han- nibal & St. J. R. Co. (1890) 103 Mo. 251, 15 S. W. 530 (involving same facts); Glover v. Meinrath (1896) 133 Mo. 292, 34 S. W. 72 (for instruction held erroneous see note 7, supra) . It is error to qualify a, requested instruc- tion that it is not negligence for a rail- road company to use cars on its rail- roads and in its yards, the couplings or deadwoods of which are not of uniform or equal heights, by the condition that such deadwoods or couplings are in other respects safe appliances, — espe- cially where there is no allegation or is- sue that the couplings or deadwoods are otherwise unsafe. Pennsylvania Co. v. Ebaugh (1895) 144 Ind. 687, 43 N. E. 936. In Louisville & N. R. Go. v. Orr (1882) 84 Ind. 50, the trial judge in- structed the jury as follows: "It would be negligence upon the part of the de- fendant to use a crab for hoisting tim- bers, that was defective in its construc- tion, when said crab could have been made complete and safe, or there were others to be secured that were complete and not dangerous. The defendant was bound to procure the best crab for th<3 purposes it was used; otherwise the de- fendant must be held responsible for the injury resulting to the plaintiff from the use of such defective crab without fault or negligence on the part of the plaintiff." The supreme court said: "This instruction was erroneous. It is not negligence necessarily to use a. de- fective machine. The master does not warrant the strength or safety of his ma- chinery. He only undertakes to employ reasonable care and prudence in selecting such as is fit for the purposes intended, and is only responsible when he has failed to use such care. When an injury occurs from the use of defective machinery, it must not only appear that the machin- ery was defective, but that the master was either negligent in its selection or in continuing to use it. The instruction in question informs the jury that the master is liable if the machinery is de- fective; in other words, that the use of defective machinery is negligence. This instruction renders the master liable if the machinery is defective, however much care and prudence have been ex- ercised in its selection or use, and not- withstanding the fact that the master may be ignorant of the defects in the machine. No case goes to this extent." In an earlier decision by the same coiu't the following instruction was approved: "It is the imperative duty of railway companies to adopt and use all im- provements in cars and machinery cal- culated to insure safety to employees and passengers, and to discard all in- secure and dangerous cars and machin- ery." St. Louis & S. E. R. Go. v. Ta- lirius (1877) 56 Ind. 511. This ruling seems to have confounded the measure of care owed to passengers with that owed to servants. It is evidently in- consistent with the ease just cited, and has been condejnned in Lake Shore & M. S. R. Co. V. McCormAck (1881) 74 Ind. 440; Vmback v. Lake Shore & M. S. R. Go. (1882) 83 Ind. 191. An instruction to the effect that if, in the opinion of the jury, the defend- ant, in the use of ordinary care, ought to have furnished an appliance similar to that used by a specified person who had testified in the ease, they should find for the plaintiff, is not open to the objection that it is equivalent to an in- struction that the defendant is bound to adopt some particular improvement. It § 36] MASTER'S SIGHT TO DO 6USINESS IN HIS OWN WAY. 91 used without tlie exercise of greater care than usual on the servant's part.^* See §§ SO et scq., ante. 36. Rationale of this principle. — (Compare §§ 55-5Y, post.) — a. An application of the doctrine of assumption of risl-:s. — Viewed from one standpoint, this principle is essentially a deduction from the principle, to be developed in a later chapter (xvii.), that a servant as- Is still left to the jury to determine whether the defendant has, in their opinion, exercised ordinary care. Wheel- er V. Wason Mfg. Go. (1883) 135 Mass. 294. In Lowrimore v. Palmer Mfg. Go. (1900) 60 S. C. 153, 38 S. E. 430, it ■was held that a requested instruction that the operation of all machinery is always attended with more or less dan- ger was properly refused, as such in- struction was a mere statement of fact. But quwre, considering that this state- ment was merely introductory to the assertion of the doctrine ttiat the ground of liability is not danger, but negli- gence. '"Indianapolis, B. & W. R. Co. v. Flanigan (1875) 77 111. 365 (double buffers in railway cars) ; The Serapis (1892) 2 C. C. A. 102, 8 U. S. App. 49, 51 Fed. 91 Reversing (1891) 49 Fed. 393 (which required more care to op- erate it than some more modern ma- chines). In Ft. Wayne, J. £ S. B. Go. V. Gildersleeve (1876) 33 Mich. 133, this particular phase of the general principle was thus lucidly expounded by Judge Cooley, in a case where a, train hand was injured owing to the fact that an old car was much lower than those commonly used by the railway com- pany: "The car which was the cause of the injury in this case was not in it- self dangerous or unfit for use. In coupling it with other cars, peculiar caution was requisite, making it more liable to cause injury than would a car of more modem construction. Its use, therefore, made the employment more dangerous than it otherwise would be. In that particular the case may be com- pared to that of a farmer who, with knowledge on the part of himself and those in his employ that a horse he has had in use is disposed to be fractious and unmanageable, continues neverthe- less to use him in his business. It may be compared to that of the merchant who continues to make use of a fluid for light, when something else which is within his reach has been demonstrated by experience to be safer. So far as we can perceive, the case of the manufac- turer would not be different in princi- ple who should continue the use of a building which, in the event of a con- flagration, would subject his employees to greater risks than would one of dif- ferent construction. Comparisons in- numerable might be made with this case in all the avocations of life. Now, any rule on this subject must be a general rule, and not one to be applied to rail- road companies alone. It will be per- ceived that the risk in the ease was such as would affect only the person employed, and that whatever duty was imposed by the circumstances upon any- one could have had reference only to such persons. The ease is consequeiitly divested of any question except such as would concern the relation of master and servant, and the same rule would govern the case that would govern were the question to arise between the farm- er, the mechanic, or the manufacturer and the persons in his employ. And treating it as a question of such broad application, we do not perceive any ground upon which the plaintiff's case can safely be planted, which comes short of this: That the employer is under obligation to his servants under all circumstances to make use of the safest known appliances and instru- ments, and is responsible for any fail- ure to discard what is not such, and to supply its place with something safer. Any doctrine so far reaching as this would manifestly be destructive of the general rule, and would almost make the employer the guarantor of his servant's safety in his employ. But under any less serious responsibility it would be impossible to sustain a judgment against this defendant upon the sole ground of a failure to discontinue the use of this car. In any light in which the question can be viewed, no breach of duty can be charged against the de- fendant, unless it be the duty to make the employment as safe for the persons employed as was possible." &^ Master and servant. tcHAt. v. sumes all the ordinary' and obvious risks of the service.^ In all, or nearly all, the cases in which the master's exemption from liability has been put upon this ground, the ser\'ant's knoAvledge, actual or con- structive, of the risk, has been adverted to as one of the elements in- volved.^ The connection between the two principles is indicated by such forms of statement as this : That the servant assumes the risk of injury, not only from the perils ordinarily incident to his service, but also from special hazards existing because of the particular means or method used by the master in the conduct of his business, of which the servant is informed, or Avhich ordinary care would disclose to him.^ Under this aspect of the doctrine its justification is to be de- ' So expressly stated in Renne v. United States Leather Go. (1900) 107 Wis. 305, 83 N. W. 473; Anderson v. Illinois G. R. Co. (1899) 109 Iowa, 524, 80 N. W. 561; Bonnet v. Galveston, H. & S. A. R. Go. (1895) 89 Tex. 72, 33 S. W. 334. ^ See, for example, Ladd v. Islcw Bed- ford R. Go. (1876) 119 Mass. 412, 20 Am. Rep. 331: Fish v. Fitchburg B. Go. (1893) 158 Mass. 238, 33 N. E. 510; Thain v. Old Colony R. Go. (1894) 161 Mass. 353, 37 N. K. 309; Olsen v. An- drews (1897) 168 Mass. 261, 47 N. E. 90; Hewitt v. Flint d P. M. R. Co. . (1887) 67 Mich. 61, 34 N. W. 659; An- thony V. Leeret (1887) 105 N. Y. 591, 12 N. E. 561; Robinson v. Dininny (1898) 96 Va. 41, 30 S. E. 442. " Burnham v. Concord ti M. R. Co. (1896) 68 N. H. 567, 44 Atl. 750. "He who enters the service of another with the machinery and implements of the employer's business in a given condi- tion, with knowledge of such condition, waives any claim upon the employer to furnish other and greater safeguards." Bay den v. Smithville Mfg. Go. (1861) 29 Conn. 548. "Where the employer and the employee are equally competent to judge of the risks and hazards, and both have equal knowledge of the sur- roundings, the employer cannot be culp- ably negligent as towards the employee, although the work may be dangerous or hazardous, and although it might be made safer by the employer if he should choose to do so." Rush v. Missouri f. R. Co. (1887) 36 Kan. 129, 12 Pae. 582. "If a servant, knowing the hazards of his employment as the business is con- ducted, is injured while engaged there- in, he cannot maintain an action against the master for the injury merely on the around that there was a safer mode in which the business might have been eon- ducted, the adoption of which would have prevented the injury." Simmons V. Chicago & T. R. Co. (1884) 110 111. 340. In Richards v. Rough (1884) 53 Mich. 212, 18 N. W. 785, the court, after asserting the right of the employer to conduct his business in his own way, proceeded thus : "There is no question in this case but that the injured party had as much knowledge of the machine and appliances used, and of all the cir- cumstances relating to the machinery and its safety, as did the defendants or their foreman. There is no showing in this case that defendants or their fore- man did not use ordinary care and pru- dence in protecting the plaintiff against dangers not within his knowledge or ob- servation and the accident of which he complains, and this is all they were re- quired to do. The risks and dangers, whatever they were, so far as the record shows, were voluntarily assumed by the plaintiff, and no question is made but that he was fully capable of under- standing and appreciating them ; and in such case the risk was his, whatever it might be. No employer by an implied contract undertakes that his machinery and appliances are safe beyond a con- tingency, or even that they are as safe as those of others using the same kind of machinery, 'or that accidents shall not result to tliose in his service from risks which perhaps others would guard against more effectually than it is done by him.' Not only did the injured party in the case know all the danger there was in using the machine that the employers or their agents knew, but his position was such that if any change occurred or was made involving an in^ crease of danger he would be the first to see it; and if he continued his serv- § 36] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 93 duced, in the last analysis, from considerations referable to that hypo- thetical condition of social and economic freedom which is assumed to prevail in the countries where the common law is administered.* ice after such change without protest, it would be at his option, and if injured he would be remediless." The following remarks in a dissenting judgment in Young v. Syracuse, B. & N. Y. R. Go. (1899) 45 App. Div. 296, 61 N. Y. Supp. 208, will be found suggest- ive: "In the prevailing opinion the general rule is recognized that the em- ployee assumes apparent risks. The learned judge then proceeds to say that this rule has no application where the master has not fulfilled the obligation which rests upon him to exercise a rea- sonable degree of care in fiimishing his servants safe places in which, and suit- able appliances and machinery with which, to perform the services required of them. In this, to my mind, is found the fundamental error in this decision. If, before an employee can be held to have assumed the apparent risks of the place provided for him in which to work, the master is bound to use rea- sonable care to make that place safe, the doctrine of the assumption of apparent risks is stripped of its vitality, and means nothing. The jury may then say whether the master has the right to use machinery and appliances that are not of the latest pattei-n, and whether his failure to provide the best machinery and latest appliances is not a violation of his duty to use reasonable care. But to provide for just this condition, tho doctrine of assumed risks has arisen and found its place in the law of negli- gence. The master may provide such place to work and such machinery as he shall choose. If the servant under- takes the employment, and continues therein, he assumes such risks as are incident to the situation and obvious." See also the cases cited in §§ 54 et seq., post. In Ragon v. Toledo, A. A. & N. M. R. Co. (1893) 97 Mich. 265. 56 N. W. 612, the decision that the defendant was not bound to ballast a side track was put partly on the ground that it had a right to assume that its employees would ob- serve the conditions, — modifying some- what the effect of what was said on the first appeal (1892), 91 Mich. 379, 51 N. W. 1004. In one of the Massachusetts decisions filready cited, Holmes, J., summed up the situation with regard to one partic- ular class of cases: "It is necessary for railroad companies to put up struc- tures near enough to their tracks for it to be possible for persons on the trains to come in contact with them. . . . There must be some point within the lijnit which it is possible for a man on a train to reach, at which the railroad company has a right to build without notice, and to assume that those on the trains will keep out of the way. Every- one knows that there is danger as soon as he gets outside of the line of the train." Thain v. Old Colony R. Go. (1894) 161 Mass. 353, 37 N. E. 309. It must be admitted, we think, that the learned judge is not very happy in the choice of the parallel instances adduced to corroborate his conclusions. There is no inconsistency in conceding that parallel tracks may with propriety be built so close to each other that an em- ployee putting his person outside the cars traveling on one of the tracks is In danger of being stnick by those travel- ing on another, and in denying at the same time that a railway company is en- titled to build scattered structures dan- gerously close to its lines. A perfectly satisfactory differentiating element is furnished by the fact that in the one case the danger is created by conditions which, as they subsist along the whole length of the track, the train hands are never permitted for a moment to for- get; while in the other, as the servant is required to encounter a number ol separate and distinct hazards as these present themselves at irregular inter- vals along a strip of space elsewhere free from obstructions, he is very apt, at critical conjunctures, to forget the existence of the particular one which it most concerns him to remember. Compare § 63, post. The analogy of the passenger is still more irrelevant, for the obvious reason that it is scarce- ly possible to conceive of circumstances under which there can be any call of duty which would justify him in being outside a car, while in the case of train hands the necessity for assuming such a position is constantly arising. * See Bethlehem Iron Co. v. Weiss (190O) 40 C, C. A- 270, 100 Fe^- 45, 94 MASTER AND SERVANT. [chap. v. A doctrine based upon this foundation evidently finds its most ap- propriate field of action in those conditions which are normal and permanent. An employer, it is laid down, owes a servant no duty to change the construction and arrangement of his plant in those parts which were in good repair and plainly visible when he entered into the contract of employment. It is one of the implied terms of the contract that the work shall be done with the construction and perma- nent arrangements which then appeared.'' ISTumerous exemplifica- tions of this conception will be found in the cases cited in chapter VIII., post. h. Rendered necessary hy the jury system of trials. — In many of the cases the principle now under discussion is referred to another consideration, which places it upon a foundation which is entirely distinct from and independent of that supplied by the theory of an as- sumption of the risk, — viz., that, under the common-law system of procedure, the effect of adopting a different principle would be to in- vest the particular jury which might happen to be impaneled with the function of determining absolutely, in each and every instance, whether the instriimentality or method of work which caused the in- jury was as safe as it ought to have been. It is asserted that, under many circumstances, a jury is not an appropriate body to decide such a question.* The argument which is supposed to be conclusive in ' Lemoine v. Aldrich (1900) 177 mraiber they require for carrying on the Mass. 89, 58 N. E. 178. Compare the business of the line; and the question language used in Ball v. Wakefield & proposed was not a proper one for the S'. Street R. Co. (1901) 178 Mass. 98, jury." It has also been laid down that 59 N. E. 668 ; Phelps v. Chicago <& N. the determination of such engineering W. R. Co. (1899) 122 Mich. 171, 81 N. questions as the propriety of having a W. 101, 84 N. W. 66. very sharp curve in a yard should not " The earliest case in which this as- be left to the varying and uncertain pect of the principle is adverted to opinion of jurors. Tuttle v. Detroit, G. seems to be SUpp v. Eastern Counties H. & M. R. Co. (1887) 122 U. S. 189, R. Co. (1853) 9 Exch. 223, 3 0. 30 L.ed. 1114, 7 Sup. Ct. Rep. 1166. L. Rep. 185, 23 L. J. Exch. N. S. This is a strong case, as the curve in 23, where it was held not to be a question was so sharp that the draw- question for the jury whether the heads of ears ran past each other when number of servants employed by the they met. That the jury is not preclud- defendant was sufficient for the per- ed from considering all questions of en- formance of the work. "As between the gineering, see § 68c, post, note 7. public and the company," said Alder- It is error to submit to a jury the ques- son, B., "tlie former may be the proper tion whether a siding was properly con- judges of the number of servants re- structed with respect to security against quired; but that is not so between the a ear being blown out on the main track, company and their own servants." Twitchell v. Orand Trunk R. Co. (1889) "This is an attempt," said Parke, B., 39 Fed. 419, following Tuttle v. Detroit, "to cast upon the jury the duty of fix- O. H. d M. R. Co. supra. That engi- ing the number of servants which a rail- neering questions are not proper ones way company ought to have; but in a for a jury to decide was also declared case like the present the company are in Chicago & E. I. R. Co. v. DriseoU themselves the proper judges of the (1898) 176 111. 330, 52 N. E- 921, I?e- § 36] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 95 favor of denying the servant the privilege of having his rights consid- ered upon this basis is that, if juries were permitted to apply the test of comparison in this manner, the views of different juries in the same jurisdiction as to the significance of facts substantially identi- cal might be entirely antagonistic, the result being that it would be impossible to obtain any fixed standard of adequacy and safety/ versing (1897) 70 111. App. 91 (use of butt post on stub switch ) . It has been held, however, that an instruction in an action for injuries to an employee in an iron manufactory, that the jury cannot undertake to say how defendant's rail- road shall be located, what will answer its purposes, and what will not, is erro- neous, as calculated to unduly restrict the legitimate inquiry of the jury. Weiss V. Bcthlehrm Iron Co. (1898) 31 0. C. A. 363, 59 U. S. App. 627, 88 Fed. 23. ' McOinnis v. Canada Southern Bridge Co: (1882) 49 Mich. 466, 13 N. W. 819, where Cocley, J., said: "The plaintiff had no right to ask the court and jury to regard a single consequence of the adoption of the device, and to condemn the management of the railroad com- pany on so narrow a view of its con- duct, but it was his business to show that, on a survey of the whole field, the use- of the block was prudent, and that it guarded against dangers in one direc- tion without the introduction of perils in another. Without that showing it seems very manifest that, as the evi- dence stood, there was no case made for the adoption of the proposed device. Railroading is at best a business with many dangers, and scarcely any ma- chine, implement, or expedient made use of in it but is liable at some times and under some circumstances to imperil hitman lives. Suppose the block had been made use of, and an accident had occurred which was thought to be at- tributable to it; how, on the plaintiff's theory, would the defendant have ex- cused itself for adopting it? A jury verdict in favor of its use in a previous case could be no protection, for a ver- dict makes no precedent, and settles nothing but the immediate controversy to which it relates; the next jury on precisely similar facts is at liberty to find to the contrary. The defendant wotild therefore be compelled to defend its adoption of the block by showing that it tended to make the management of trains more safe. But if the plain- tiff in the suit were to proceed to show — what fully appears in this case — that, though the device had been known for several years, the experts in charge of railroads the country over, naturally solicitous as they must be, on grounds of personal interest, if not of humanity, to diminish the risks to life, had failed to be convinced of the expediency of making use of the block, this showing would have made out a case against the defendant which could not well have been answered. The prima facie show- ing that the device had been hastily, if not heedlessly, adopted, would certainly have been very strong; and if the two cases charging respectively negligence in rejecting and then in adopting the same device could go to successive ju- ries, we might witness the instructive result of a verdict against the defend- ant in both." In Richards v. Rough (1884) 53 Mich. 212, 18 N. W. 785, the court reasoned thus: "The testimony does not show or tend to show that the machinery from the use of which the injury occurred was defective either in construction or for want of repair; neither does it appear that anything could have been done to the machine by the defendants to guard against danger of accidents more than was done. All machinery is dangerous to a greater or less extent, and particularly when oper- ated by steam. The defendants had to select the kind of machinery they wished in conducting their business. At this day, when inventions of machinery are of daily occurrence, frequently a large number of different kinds are made to accomplish the same purpose, and great difference of opinion exists as to the kind best adapted to the use in- tended, in the minds of men well skilled in their construction and use. The comparative merits of the different kinds, whether as to safety or utility, are questions most difficult to solve; and to say that it shall be left to a court or jury to determine in any given case which kind a manufacturer shall use in order to avoid liability in case of an accident to an employee while using it would be imposing a duty upon 06 MASTER AND SERVANT. [chap. v. Tlie ease with which witnesses can be found to testify on either side as to such a matter has also been referred to as an important consid- eration in this connection.* the court and an injustice upon the party, alike intolerable. A manufac- turer must be permitted to choose the machinery he desires to use, and to con- trol his business in his own way, pro- vided he does no unlawful act. He may use new or old machinery, according to his liking, and if it is sound, well made, and kept in repair he will not be liable for an accident occurring to an em- ployee using it, so long as the only cause alleged is that there is a better and safer kind of machinery used for the same purpose." So in Harlcy v. Huffalo Car ilfq. Co. (1804) 142 N. Y. 31, 36 X. E. 813, we find Earl, J., rea- soning thus: "Suppose, under the cir- cumstances which exist here, the de- fendant had adopted one of the other fasteners for this particular belt, and an accident had happened from its parting ; there would have been substan- tially the same evidence for the jury and the same claim could have been made which is now made, that there was a question of fact for the juiy as to its negligence in making the selection. This judgment cannot be affirmed without subjecting the master in such a ease as this to the risk of liability for injuries from the parting of a belt moving ma- chinery in his shop, whatever fastener he may use, because if he uses one kind, according to the evidence in this case, it is easy to find persons who will tes- tify that from their experience and ob- servation some other kind was better." In Boyd v. Harris (1806) 176 Pa. 484, 35 Atl. 222, the court argued as fol- lows : "This case presents a question, the importance of which extends far be- yond the present parties and the judg- ment to be entered herein. It is wheth- er the location of the permanent struc- tures along a line of railroad necessary to accommodate its business is to be de- termined by the railroad company or by a petit jury. If by the former, they may be located with reference to the convenient and economical use of the railroad and the accommodation of its traffic. If by the latter, these consid- erations will be lost sight of, aad the proper location will be a shifting one, to be settled by each successive jury in ac- cordance with its own notions and the peculiar features of the case on trial. One jury may hold a given location to be safe and proper. The next jury may hold it to be unsafe and therefore improper. There are many such structures neces- sary to the operation of a line of rail- road. Among the more importantof them may be mentioned the bridges, station houses, grain elevators, warehouses, wa- ter tanks, coal chutes, cattle chutes, sig- nal stations, and tool houses. The po- sition of these buildings with reference to the track of the railroad, their size, and the mode of construction must be deteiTTiined with reference to their pur- pose and their convenient use as a neces- sary part of the physical plant of the railroad company. \A'here they shall he placed and how they shall be ar- ranged are questions that belong to the railroad company as truly as the loca- tion of the switches and sidings, or of the track itself; and the discretion of its officers is no more under the control of a petit jury in the one case than in tlie other. This discretion is to be ex- ercised in view of the conformation of the surface;, the character of the busi- ness to be accommodated, and the con- venience of the servants and employees by whom it is to be carried on. It is part and parcel of the work of construc- tion, and is governed by the same prin- ciples." In Bethlehem Iron Co. v. Weiss (1000) 40 C. C. A. 270, 100 Fed. 45, the court, after laying do^vn the general rules of law prescribing the du- ties of the master and the reciprocal undertakings of the servant, proceeded to explain that these rules, "while they limit, do not deprive the master of, the right to manage and conduct his busi- ness according to his own judgment; and this is true, even though his meth- ods be more dangerous than others that might be adopted. The so-called rule of a reasonably safe place, in order to be fitted into the structure of the law of master and servant, must be so lim- ited and qualified by these other rules to which we have been referring as not to be inconsistent with them ; otherwise, it cannot be recognized as a rule of law. It cannot be permitted to sanction the turning over to a jury the determination in every case of what is 'a reasonably safe place,' and thus substitute its vary- ing judgment as to bow a business jnust § 36] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 1)7 This line of argument is plausible, but scarcely satisfactory. The reasons thus adduced are doubtless sufficient to justify an extremely free exercise of the right to control or set aside verdicts, to the end that something like reasonable uniformity in the law may be secured. But they do not, it is siibmitted, constitute an adequate basis for such a broad generalization as that embodied in a principle which virtually amounts to a declaration that a jury ought never to be permitted to consider the question of a defendant's negligence with reference to the feasibility of procuring a safer kind of instrumentality. In the practical administration of the law, it is always difficult, and often impossible, to disentangle the question of reasonable safety from that of comparative safety, and if the triers of fact are not allowed to con- sider the latter question, the former one is apt to be thriTst into the background and unduly neglected. A more logical as well as a more equitable rule would therefore seem to be this, — that evidence tending to show that a safer instrumentality might have been used has an ap- preciable bearing upon the question whether the one actually used was reasonably safe, and may or may not be conclusive, according to the other elements presented by the case. c. Master not an insurer of the servant's safety. — A third consid- eration which has been adverted to as affording a support for the principle is that a different rule would practically create a require- ment that "employers should provide such machinery as would suffice to insure their employees against accidents."* But this statement is be carried on, for the lawful judgment manner of construction of a, railroad is of the owner or manager, who may have proper or not. A verdict is not a prece- performed his duty in the premises, as dent, and is not binding on another prescribed by the well-established rules jury. One jury might find the oonstruc- of law above adverted to. With the tion a proper one, while another jury possible exception of some extreme con- might find it an improper one, and the ceivable cases, the master who has important engineering question of the conformed to these rules of law has per- manner of constructing a railroad would formed his duty as to furnishing a safe thus be left to the varying and uncer- place for the workmen to work in, even tain opinions of jurors. The only ques- though it may be more dangerous than tion proper to submit to a jury in such it might be made to be." In Chicago & cases is whether the premises as they E. I. II. Go. V. Vriscoll (1898) 176 111. existed at the time of the injury were 330-334, 52 N. K. 921, Reversing (1897) reasonably safe." See also Titus v. 70 111. App. 91, the court said: "Pub- Bradford', B. & K. It. Co. (1890) 136 lie policy does not require courts to lay Pa. 618, 20 Atl. 517; Chicago & G. W. dovvp any rule as to the manner of con- R. Co. v. Armstrong (1896) 62 111. App. struction of railroads. The hazardous 228. ch.iracter of the business of operating a 'Rush v. Missouri P. R. Co. (1887) railroad, and the danger to life, body, 36 Kan. 129, 12 Pac. 582. and limb of employees thereon, may well ' Augerstcin v. Jones (1891) 139 Pa call for specific legislation having for 183, 21 Atl. 24. Compare Tahler v. its object the protection of the person Hannibal & St. J. R. Co. (1887) 93 of the employee and of the traveling ilo. 79, 5 S. W. 810, where the court, public; and yet it is not a question for in a case of this type (see above for a court to submit to a jury whether the facts), took oojasion to declare that the Vol I. M. & S.— 7. 98 MASTER AND SERVANT. [chap. v. manifestly founded on a false conception. The proposition that the master is bound to supply a certain instrumentality because it is the best and safest available is not logically equivalent to the proposition that he is bound to insure the servant's safety. Even if the master were compelled, at his peril, to use instrumentalities answering that description, there would still be a greater or less residuum of risks which would not be covered by the obligation thus imposed. 37. Feasibility of the changes suggested; evidential significance of. — (Compare general principle discussed in § 23, ante.) In some cases the fact that the instrumentality which caused the injury would have performed its functions equally well if the suggested improvement had been made is mentioned as one of the elements going to show that it was negligent to maintain the existing arrangements.-' In others the court mentions, as one of the reasons for absolving the defendant, the impossibility of doing the required work with the instrumentality if it had been altered in the manner proposed.^ In others the im- master is not an insurer. In Young v. Burlington Wire Mattress Go. (1890) 79 Iowa, 415, 44 N. W. 693, the court asserted the principle that a master is not required to use appliances so con- stmcted that no injury can be inflicted by them under any circumstances. ^ See, for example, Renne v. United States Leather Co. (1900) 107 Wis. 305, 83 N. W. 473 (steam pipe above track might have been raised without impairing its efficiency). ^Sisco V. Lehigh & H. R. Go. (1895) 145 N. Y. 296, 41 N. E. 90 (error to submit liability of railway company to jury, where a brakeman is injured by collision with a mail crane having a stationary arm of a pattern similar to that used by extensive lines of railroad, and it could not be placed further from the track and perform the service for which it is designed, although some other railroads use a crane with a mov- able arm which rises or falls automati- cally when not in use; the evidence be- ing that the cranes with stationary arms are preferable to the others be- cause they permit a greater space be- tween the end of the arm and the side of the car. [1894] 75 Hun, 582, Re- versing 27 N. Y. Supp. 671). A rail- road company is not guilty of negli- gence in failing to erect any barriers around the pits used by its employees in its round house, where it would be impossible to erect barriers and do thu work about an engine which is intended when the pits are used. McDonnell v. Illinois G. R. Go. (1898) 105 Iowa, 459, 75 N. W. 336. In a recent case the court, in holding that the owner of a mill is not guilty of negligence in main- taining in the mill yard, not on or near the passageway leading to and from the mill, a. cistern or reservoir used in the business, protected by a coping extend- ing entirely around the same, and a chain fence which extends but partly around, a gap being necessary for the proper use of the cistern, — remarked that the cistern was as thoroughly pro- tected as could reasonably be expected, considering the uses to which it was jjut. McGann v. Atlantic Mills (1898) 20 R. I. 566, 40 Atl. 500. See also Keenan v. Waters (1897) 181 Pa. 247, 37 Atl. 342 (employer not liable for an injury to an employee while engaged in operating a laundry machine which had no guard rails and could not be oper- ated with guard rails, but was in per- fect working condition and of a kind in general use, merely because other ma- chines differently constructed and fur- nished witii guard rails, the operation of which would be less dangerous, are in use) ; Tisch v. Birsch (1898) 32 App. Div. 635, 52 N. Y. Supp. 1076 (em- ployer maintaining an elevator cannot be charged with negligence upon the the- ory that he permitted a screw which held one end of a bar which guarded an entrance to the elevator shaft to be- come loose, thus allowing a play of the § 38] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 99 practicability of employing the suggested device in connection with the instrumentality in question is adverted to.^ But it would seem that the only real significance which can justifi- ably be ascribed to these circumstances is merely that of corrobora- tive factors. There does not seem to be any logical ground for as- serting that, when the suitability of an appliance is being gauged with reference to the safety of a servant, it may be material to ascertain Avhether the changes indicated were possible, consistently with the continued use of that particular kind of appliance. If the master is not protected, independently of this consideration, by the general principles treated in this and the two ensuing chapters, there is a clear obligation on his part to change the appliance in some way cal- culated to secure greater safety, and the obvious conclusion is that, if the appliance cannot be operated after the proposed improvements are made, it ought to be discarded altogether. 38. Negligence not inferable from the use of dissimilar appliances for the same purpose. — The mere fact that a master uses simultaneously different types of the same kind of appliance does not import culpabil- ity. The risks arising from this difference are deemed to have been assumed by the servant, provided they are apparent and may be de- tected without any special skill and knowledge.^ He acts, therefore, within his rights when he makes a portion of some particular class of his instrumentalities more secure by adopting a new device, while he leaves unchanged the rest of the instrumentalities of that class. The contingency that such a partial alteration may be made is a risk bar, which permitted it in its descent erence to the fact that "the arrangement to pass outside instead of into a hasp was an indispensable part of the stage on the other side of the entrance, ren- mechanism." That the impracticability dering it necessary to guide the bar by of making a change is always an ele- hand into the hasp, where it was abso- ment to be considered by the jury, see lutely essential to the use of the bar Maxwell v. ZdarsJci (1900) 93 111. App. that there should be enough play to per- 334. mit it to pass outside of the hasp). In °As, where it wag denied to be negli- some cases where the absence of a guard gence not to have a "shifter" for the to a machine has been denied to be neg- purpose of pulling a, belt on to a fixed ligenee, the impracticability of operat- pulley, the evidence being that such a ing it with a cover has been emphasized device can only be used in moving belts arguendo. Palmer v. Harrison (1885) from fixed to loose pulleys. Toung v. 57 Mich. 182, 23 N. W. 624; Mackin v. Burlington Wire Mattress Go. (1890) Alaska Refrigerator Co. (1894) 100 79 Iowa, 415, 44 N. W. 693. It is a Mieh. 276, 58 N. W. 999. But the de- question for the jury whether a belt cisions seem to be independent of this shifter should have been used, where the factor. The case of Seymour v. Maddox evidence as to its utility and practica- (1851) 16 Q. B. 326, 20 L. J. Q. B. N. bility is conflicting. McDougall v. S 327, 15 Jur. 723 (see § 2, ante), was Ashland Sulphitc-Filre Co. (1897) 97 explained bv Mr. Justice Erie in Roh- Wis. 382, 73 N. W. 327. erts v Smith (1857) 2 Hurlst. & N. ^Peirce v. Bane (1897) 27 C. C. A. 213, 26 L. J. Exch. N. S. 319, 3 Jur. N. 361, 53 U. S. App. 297, 80 Fed. 988. S. 469, as having been decided with ref- 100 MASTER AND SERVANT. [chap. v. incidental to the duties of a servant hired while the original devices were alone in use, and is therefore one of the risks assumed by him.^ A fortiori must the master be regarded as free from culpability where the evidence clearly shows that several methods are in general use, the choice being a matter of judgment, depending on the surrounding conditions. The law then allows him absolute discretion to select ac- cording to his own judgment.^ A master is not liable merely because an appliance which he furnishes is novel, and requires a different kind of management on the part of servants using it.'* If, after the introduction of an approved appliance, the master is compelled, ow- ing to its failure to perform its functions properly, to revert for a short time to the use of the appliance formerly furnished for the same purpose, he cannot be held liable for an accident resulting from this resumption of the discarded article, where the temporary substitute is the best of its kind that can be obtained, and, while it wao still in general use, was considered adequate and suitable.^ 39. Master's duty to introduce new appliances. — (See also §§ 43 et seq., post.) What may be regarded either as a corollary from the principles discussed in the preceding sections, or as another mode of stating it from one particular standpoint, is the doctrine that "an em- ployer owes his employee no duty to change a business in order to make it safer, even though in some parts his ways and works would not be deemed reasonably safe and proper if he were starting a new ^ Pittsburgh d L. E. B. Co. v. Een- had at the time and place of the aeci- hj (1891) 48 Ohio St. 608, 15 L. R. A. dent. Suppose a, master, needing fas- 384, 29 N. E. 575 (couplings of different teners in his shop makes inquiry among patterns). men of skill and experience as to the ' Kehler v. Schicenk (1891) 144 Pa. best kind of fa.steners to use, and he is 348, 13 L. R. A. 374, 22 Atl. 910. "It informed by some that one kind is the must always be true," Earl, J., said in best, and by others that another kind is Barley v. Buffalo Gar Mfg. Co. (1894) the best, and so on, and he finally makes 142 N. Y. 31, 36 N. E. 813, "that where a. selection, using his best judgment; several appliances are in use, each of and suppose it should turn out that it which is regarded by men of skill and was not the best, could he, under such experience as safe and proper, the mas- circumstances, be held liable for an in- ter cannot be made liable for an injury jury received by a person in his service to one of his servants, if in selecting the from the parting of a belt on account of particular appliance he takes what ae- the insufficiency of the fastener under cording to his judgment is the best or any particular strain to which the belt most suitable, guided by his experience had been subjected?" and observation and those of the skilled 'Gulf, C. & S. F. R. Co. v. Williams men in his employment. . Un- (1888) 72 Tex. 159, 12 S. W. 172. der such circumstances, how can it be '^ Red River Line v. Smith (1900) 39 said that the defendant violated any C. C. A. 620, 99 Fed. 520 (electric duty it owed to the plaintiff? It was lights failed on a Mississippi river impossible fi-cm the evidence to deter- steamboat, and lard-oil lanterns were mine whether these fasteners were or supplied to the workmen who were un- were not the best in use for such a belt loading cotton), and such machinery as the defendant § 39] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 101 establishment to do the same kind of work under an arrangement with employees to serve in the business afterwards to be estab- lished."^ An employer has a right to arrange his own premises in any way which suits his convenience, and is not bound to change the arrangement to secure greater safety to his employees.^ He may, if he chooses, carry on his business with an old rather than a new ma- chine, and he cannot be required to keep in his service persons who refuse to operate it.^ In other words, the rule that a master is bound to take certain precautions for the security of his servants does not abridge the liberty of contract between him and them as respects work upon old and well-known machines.^ He is not bound to change his machinery in order to supply every new invention or sup- posed improvement,^ nor "to employ every new device or improve- ^ Murch V. Thomas Wilson's Sons c6 be a shipper on a belt, since, there being Go. (1897) 168 Mass. 408, 47 N. E. Ill no evidence that the machine ever had (shipowner held not liable for the as- a, shipper, the master was not bound to phyxiation of a pilot, caused by a fel- change the condition of the machine in low servant's closing the door of a. such respect. Cushman v. Cushman room which he was permitted to occupy, (1901) 179 Mass. 601, 61 X. E. 262. An and which was liable, when closed, to employee who is caught by a derrick ear be filled with dangerous fumes from the on a bridge which he is crossing in or- patent fuel burnt in the stove) . The der to reach his place of worlc cannot correctness of this particular applica- recover on the theory that his master tion of the principle seems quite ques- was negligent in not providing some tionable, as the decision amounts to say- other mode of going to and from the ing that a master is entitled to supply work, or in failing to furnish a differ- niaterials which may be converted into ent kind of car, where such ear was in imminently dangerous articles by an use when the servant began work, and aet of a fellow servant, which is very was suitable for the use for which it likely to occur, and which does not im- M-as intended. Olsen v. Andreics (1897) port negligence on his part. See also 168 Mass. 261, 47 N. E. 90. Gleason v. Smith (1898) 172 Mass. 50, '-Anthony v. Leeret (1887) 105 N. Y. 51 N. E. 460 (no obligation to guard 591, 12 N. E. 561 (location of trap door more effectually the knives of moulding in a passageway not culpable per se) . machinery) ; Fisk v. Fitchhurg It. Co. 'Sweeney v. Berlin & J. Envelope Co. (1893) 158 Mass. 238, 33 N. E. 510 (no (1886) 101 N. Y. 520, 54 Am. Rep. 722, obligation to remove further from a 5 N. E. 358. railway track a structure which is dan- * The Maharajah (1889) 40 Fed. 786. gerousiy close to it) ; Ft. Wayne, J. & "We are of opinion that where a work- ISi. B. Go. V. Gildersleeve (1876) 33 man is employed to do certain work Mich. 133 (railway company not bound with a machijje which he fully under- to discontinue using an old car, simply stands, though it may not be of the new- because it is so much lower than the est pattern, but nevertheless is in per- others that coupling it involves excep- feet order of its kind, and may require tional peril); Botsford v. Michigan more care than those of newer patterns, C. R. Co. (1876) 33 Mich. 256 (same he takes the risk of all accidents which point) ■ Whiticam v. Wisconsin (f M. R. may befall him in its use." The Sera- Go. (1883) 58 Wis. 408, 17 N. W. 124 pis (1892) 2 C. C. A. 102, 8 U. S. App. (negligence not inferable from the use 49, 51 Fed. 91. of a drawbar on a locomotive, so short ° Wonder v. Baltimore & 0. R. Co. that the operation of coupling it to a (1870) 32 Md. 411, 3 Am. Rep. 143 (not car was unsafe). See also cases of dis- bound to exchange hooks for eyebolts as similar couplings in § 71, post. It is a means of attaching brakes, though the proper to exclude evidence that plaintiff latter may be superior) ; Chicago, R. I. had told the master that there ought to & P. R. Co. v. Loner gan (1886) 118 111. 102 MASTER AND SERVANT. [chap. V. ment the moment it is invented,"® nor "the newest pattern or inven- tion,"^ nor to adopt "all the latest improvements.,"* nor to adopt "the most approved appliances."'' Especially is there no such obligation, if in choosing the instrumentality actually put into use he acted on the recommendation of persons of skill and experience,^" or if there is no evidence to show that the suggested alteration, although it may avert some dangers, will not introduce others equally serious.-'^ It is immaterial that the newer machines may have some additional safe- guards.-'^ The servant having accepted the service subject to risks, with knowledge of the kind of tools and implements used, the master is not required to furnish new appliances, or to elect between the ex- pense of so doing and damages for injuries to servants from the use of an older or a different pattem.^^ The servant is deemed to be suf- 41, 7 N. E. 55, citing Wharton, Neg. § 213; Toledo, W. & W. R. Go. v. Ashury ()877) 84 111. 429 (no obligation to in- troduce the "Jliller" self-coupling appa- ratus) ; Louisville & N. B. Co. v. Allen (1885) 78 Ala. 491; Georgia P. R. Co. V. Propst (1887) 83 Ala. 518, 3 So. 764; Gamp Point Mfg. Go. v. Ballou (1874) 71 111. 417; Galveston, 3. & 8. A. R. Co. V. Gormley (1894; Tex. Civ. App.) 27 S. W. 1051 (disapproving in- struction that appliances should be "of modern improvement"). 'Faber v. Carlisle Mfg. Co. (1889) 120 Pa. 387, 17 Atl. 621. ' Chicago d G. W. R. Go. v. Arm- strong (1895) 62 111. App. 228. ' Sappenfleld v. Main Street d Agri. Park R. Go. (1891) 91 Cal. 48, 27 Pae. 590. "In Heimtt v. Flint d P. M. R. Co. (1887) 67 Mich. 61, 34 N. W. 659, it was held that the plaintiff had not suc- ceeded in establishing a want of ordi- nary care on the defendant's part where the evidence (as stated by the court) was to the following effect: "The plat- form car which caused the accident had stood upon the track for a month, and during the entire existence of the siding no car was shown ever to have left it be- fore without being moved by the defend- ant's servants. Those connected with the freight train which backed in upon the siding just before the accident say it did not touch the car, and this testi- mony is substantially undisputed. The wind which, it is claimed, moved the ear, is shown to have produced a press- ure against the end of the car not ex- ceeding 20 pounds, which would hardly be expected to move a car weighing 7 tons on a grade such as this siding was shown to have been. This side track had been in constant use for at least sixteen years, holds all kinds of cars, and no case of a car of any kind going out by force of the wind has ever been known at that station. It also appears by the testimony of competent and skill- ful engineers and mechanics and rail- road men that upon this siding there was no occasion for using stop blocks; that their use was accompanied with in- convenience and danger; that good rail- road management dispensed with them when not actually necessary; and that no necessity existed for their use upon this siding. There was no pretense but that all of the employees of the defend- ant were competent, skilled, and experi- enced men." ^'M'Gill V. Bowman (1890) 18 Sc. Sess. Gas. 4th series, 206. See also § 16b, ante. ^'■McGinnis v. Canada Southern Bridge Co. (1882) 49 Mich. 466, 13 N. W. 819 (blocking of frogs). ^The Maharajah (1889) 40 Fed. 786. '' Sweeney v. Berlin d J. Envelope Co. (1886) 101 N. Y. 520, 54 Am. Rep. 722, 5 N. E. 358 (master not guilty of neg- ligence in not providing a clutch for an embossing machine, other than the pedal, to prevent motion in the ma- chine while the operator's hands were exposed to danger. The court said: "It is plain that the danger, to the knowl- edge of the plaintifif, was inherent in the use of the machine and to the work it- self; the peril did not grow out of ex- trinsic causes or circumstances which could not be discovered by the use of ordinary precaution, nor to a condition § 39] MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 103 ficiently protected by the possession of his right to avoid exposure to those rislcs by quitting the employment. ■** See also chapters xvii. and XX. He is "not bound to risk his safety in the service of the master, and may, if he thinks fit, decline any service in which he rea- sonably apprehends danger to himself."-^^ That the employer's privilege in respect to the retention of an in- ferior type of instrumentality is not entirely unlimited is indicated by the qualificative expressions used in some cases, — as, where it is laid down that to render an employer liable for furnishing an unfit appliance, it is not sufficient that there are better or safer appliances to be had, but that supplied must have some radical fault, or its use have become so generally obsolete or supplanted by others superior thereto that its adoption or retention will itself indicate negligence ;^® or where it is said that a master is not required "to adopt any new device until its utility has been sufficiently tested, and it has been shown to be, as a whole, better than the appliance in use."^^ These statements seem to recognize, though not very explicitly, the principle that in the process of improvement there may be a stage finally reached at which the disparity in point of safety between the instru- mentalities or methods actually adopted and those available becomes so glaring that a verdict for the plaintiff based on the hypothesis that the retention of the old appliance was culpable ought not to be inter- fered with.^® Some judges have gone to the length of refusing to of things diflferent from those existing (1882) 11 111. App. 147; Hawk v. Perm- at the beginning of the service. It was sylvania R. Go. (1887; Pa.) 11 Atl. part of the plaintiff's engagement that 459; Sweeney v. Berlin £ J. Envelope the master's work should be performed Co. (1886) 101 N. Y. 520, 54 Am. Rep. in the usual course and way of business. 722, 5 N. E. 358 ; Wonder v. Baltimore The work which the servant was called £ 0. B. Go. (1870) 32 Md. 411, 3 Am. upon to do at the time in question was Rep. 143. not of a different character from that ^Priestley v. Fowler (1837) 3 Mees. which he originally undertook; and the & W. 1, 1 Murph. & H. 305, 1 Jur. 987. machine upon which it was to be done ^° Sappenfield v. Main Street & Agri. was one then in use. No new duty or Park K. Co. (1891) 91 Cal. 48, 27 Pac. species of labor was imposed upon him, 590. As to the significance of the nor was he required to work a machine usages of other employers, see §§ 43 et with which he was not familiar. He seg., post. was simply called upon to do that for "Burns v. Chicago, M. & St. P. R. which he was engaged, and the doing of Go. (1886) 69 Iowa, 450, 58 Am. Rep. which formed the consideration of his 227, 30 N. W. 25 (negligence held not employment. To say that the master to be predicable merely from the failure shall be liable to the servant in such a of a railroad company to adopt the ease is to say that he shall not have the "Potter" draft iron with three coup- benefit of the labor for which he con- lings, there being nothing to show how tracted") ; ArizorM Lumber & Timier long it had been in use, and no evidence Go. V. Mooney (Ariz. 1895) 42 Pac. 952 that the single coupling was not still in (no obligation to put a guard on a cir- use). cular saw to prevent pieces of wood " In Smith v. New York d H. R. Co. from flying off from it). (1856) 6 Duer, 225, Affirmed (1859) in "Chicago & T. B. Co. v. Simmons 19 N. Y. 127, 75 Am. Dec. 305, a rail- 164 Master and servant. [chap. v. impute negligence to the master where the alternative methods or ap- pliances available to him were those most usually employed by other persons under like circumstances.^^ But this doctrine is contrary to the weight of modern authority. See § 1076, post. 40. General doctrine not a protection where the instrumentalities are of a pattern that is not reasonably safe. — As already stated, in § 33, ante, the doctrine now under discussion is supposed to be applied sub- ject to the qualification that the means and appliances furnished are reasonably safe and suitable for the servant's use. The full effect of this qualification and its operation with reference to the other ele- ments by which, as explained in the next two chapters, the extent of the employer's obligation is tested, can be most clearly shown by col- lating the decisions with respect to specific instrumentalities. A summary of those decisions will be found in chapter viii., post. 41. — nor where they are specifically defective. — Another qualifica- tion of the doctrine is that it furnishes no protection to a master who furnishes instrumentalities which are defective either in construction or for want of repair. The distinction between tlie liability incurred by the use of such instrumentalities, and by the use of instrumentali- ties in their nonnal condition, is recognized in a large number of way company over whose lines the said: "It is now settled that there is plaintiff's employer had running powers no contract obligation imposed upon the was held liable for its failure to adopt master, from the mere relation that he an improved form of switch which bears to the servant, to provide machin- %\ould have materially reduced the risk e.iy of any particular character or de- of accident. But this decision is not scription to be operated by the latter; easy to reconcile with the later case of nor is there any implied undertaking on f^ii:ecney v. Berlin & J. Envelope Co. the part of the former, resulting from (18S0) 101 N. Y. 520, 54 Am. Rep. the mere relation as employer, that the 722, 5 X. E. .358, cited in note 3, supra, machinery shall be kept free from de- In North Carolina it Avas remarked ten fects such as may expose the servant to years ago that "in view of the changes danger. The servant is a free agent to incident to new inventions and diseov- select the employment into which he en- eries, facts which would not have shown ters, and, in contracting for the wages negligence a few years since may now that he is to receive, must be supposed or in the near future be declared in law to take into account the risks to which ample evidence of culpable dereliction the employment may expose him; and in duty;" and the opinion was expressed among those risks are the defects and that the time had arrived when rail- accidents of the machinery, and the neg- road companies should be required to ligence and want of caution of fellow attach the Janney or similar improved servants in the common employment, coupler, and perhaps air brakes to all To hold the master liable to the serv- passenger cars, though not to freight ant for all the injuries resulting to the ears on account of the great expense in- latter from defects in machinery or ma- volved. Mason v. Richmond a D. It. Co. terials upon which he may be em- (1892) 111 N. C. 487, 18 L. R. A. 846, ployed, or from the negligence of fellow 16 S. E. 099. servants engaged in the common em- " Dynen v. Leach (1857) 26 L. J. ployment, would go far to impede, if not Exch. N. S. 221 ; Wonder v. Baltimore to make it impossible, to carry on many (t 0. U. Co. (1870) 32 Md. 411, 3 Am. of the great works of the country." Rep. 143. In the latter case the court I 41 1 MASTER'S RIGHT TO DO BUSINESS IN HIS OWN WAY. 163 cases.^ Other decisions in which it is taken for granted that ths em- ployer's right to carry on business in his own way is limited to this extent are those cited in chapter viii.^ b , requiring him to answer for injuries due to abnormal conditions. ' Tuttle V. Detroit, 0. H. & M. B. Co. some of the cases dangerous and defect- (1887) 122 U. S. 189, 30 L. ed. 1114, 7 ive machinery and implements are con- Sup. Ct. Rep. 11 GO, where the perils founded, and proceeded thus: "Maehin- arising from the sharpness of a curve eiy is not necessarily defective because are distinguished from those arising dangerous. The most perfect steam en- from the defects of unsafe machinery gine requires skill and care in its man- which the employer has neglected to re- agement, and is a dangerous agent. Cir- pair, and which his employees have rea- cular saws, planing machines, and near- son to suppose is in proper working con- ly all machines used in wood work are dition. H'lMit v. Kane (1900) 40 C. C. dangerous, but not therefore necessarily A. 372, 100 Fed. 256, where it was held defective. Tliis distinction must be that the rule that a railroad company kept in view in determining all ques- is not guilty of negligence in failing to tions which arise in suits for injuries block its frogs, which renders it liable leceived by employees in using imple- for an injury to a switchman working ments and machinery furnished by the in such yards who has knowledge that employer." Compare St. Louis, I. M. no blocking is used, is not applicable to £ 8. It. Co. v. Davis (1891) 54 Ark. 389, a ease where a company undertakes to 15 S. W. 895, where it was said that, maintain blocking, but allows it to be- when a master employs a servant to do come defective. Denver Tramway Go. a particular work with a particular v. Nesbit (1896) 22 Colo. 408, 45 Pac. l-iind of implement or machine, he agrees 405, where one of the grounds for deny- that it is fit for the purpose intend- ing the servant's right to recover was ed, but not that it can be used with- that the omission to supply a trail car out danger. See also these cases: The with a fender was not a defect of con- Serapis (1892) 2 C. C. A. 102, 8 U. S. struction, though it enhanced the risks App. 49, 51 Fed. 91; Richards v. Rough of the employment. Keenan v. Waters (1884) 53 Mich. 212, 18 N. W. 785 (ar- (1897) 181 'Pa. 247, 37 Atl. 342, where guendo) ; Sweeney v. Berlin & J. Envel- the fact that the machine which, it was ope Co. (1886) 101 N. Y. 520, 524, 54 alleged, should have been discarded, was Am. Rep. 722, 5 N. E. 358 ; Ellis v. New in perfect worl SERVANT. [dtAP. VII. which his inexperience or want of skill does not enter as an element, the decision being put upon the general principle that a servant has a right to rely on the master for the proper performance of his duty as to providing reasonably safe tools, without inquiry on his part f and 'Croker v. Pusey & J. Co. (1900) 3 Penn. (Del.) pt. 1, p. 1, 50 Atl. 61. An ice company is liable for injuries to its employee, while engaged in his duty in pushing ice along a slide to an ice house, from the fall of the slide because of insufficiently fastened braces and its poor construction, where the servant does not know the actual condition of the supporting trestle, and has not had an opportunity to examine it. Fw/c v. Des Moines Ice Go. (1892) 84 Iowa, 321, 51 N. W. 155. A railroad com- pany is chargeable with negligence in using cars having bumpers so badly worn and rotten that, when brought to- gether to be coupled, there are but a. few inches of space between them, un- less it has brought home to its employ- ees actual notice of their defects, and the danger to be incurred in handling them. Chesapeake & 0. R. Co. v. Lash (1896; Va.) 24 S. E. 385. A railway company which continues to use a few cars of a discarded pattern, the special defects of which are of such a nature that there is nothing to indicate to a brakeman that they are different from other cars, is not, as a matter of law, in the exercise of due care. Palmer v. Dewcer & R. O. R. Go. (1882) 3 Mc- Crary, 635, 12 Fed. 392 (demurrer of defendant overruled). It is negligence to maintain a "telltale" so low that it is dangerous to brakemen on cars of more than ordinary height, and there- fore, not a manifest risk. Darling v. New York, P. & B. R. Go. (1892) 17 R. I. 708, 16 L. R. A. 643, 24 Atl. 462. The condition of brush by the side of a railroad track is not a fixed one, so as to make the danger arising to a rail- road employee from the obstruction of a view of the track by such brush, one obvious and assumed as a condition of his employment. Oregon Short Line <€ U. N. R. Co. V. Tracy (1895) 14 C. C. A. 199, 29 U. S. App. 529, 66 Fed. 931. It is inexcusable negligence on the part of a railroad company to use, especially in the nighttime, for shifting purposes in its yard, an engine unprovided with any safeguards or protection to the per- son who attempts to couple it to a car, and upon which he is required to stand on one foot, with his lantern on his arm and both hands engaged. Smith v. Buffalo, R. & P. R. Go. (1893) 72 Hun, 545, 25 N. Y. Supp. 638. It is negli- genc-e for a contractor to maintain an unguarded well, of which the servant is not aware, near the route which a servant would naturally take in passing through a field by night. Indiana Pipe Line & Ref. Co. v. Neusbaum (1899) 21 Ind. App. 361, 52 N. E. 471. Evidence lending to show that the danger of us- ing a, machine was increased by the ex- press order of the master directing the removal of a shoe, and that plaintiff had no knowledge of this act of the master, nor any information whether such a shoe was an essential part of the proper construction of the machine, is sufficient to take the case to the jury. Plefka v. Knapp-Stout Lumber Co. (1897) 72 Mo. App. 309. In Tendrup v. John Stephenson Co. (1889) 51 Hun, 462, 3 N. Y. Supp. 882, Affirmed (1890) 121 N. Y. 681, 24 N. E. 1097, it was held that a. master who orders a stair- case to be moved and so placed as to be insecure for anyone who steps upon it is liable for injuries received by a serv- ant who is not aware of the changed conditions. In the supreme court, Bartlett, J., dissented, considering that the accident was, upon the evidence, due to the negligence of the plaintiff's fellow servant who, after moving the staircase, had left the spot for a few minutes without taking precautions to warn persons who might wish to use it, as to the latent peril. The servant's ignorance was also an element in the following decisions, by which recovery was allowed: Bamilton v. Des Moines Valley R. Co. (1872) 36 Iowa, 32 (cars loaded with lumber, which projected over the ends) ; Spelman v. Fisher Iron Co. (1870) 56 Barb. 151 (blasting pow- der, liable to explode when tamped) ; Fatten V. Central Iowa R. Go. (1887) 73 Iowa, 306, 35 N. W. 149 (unfenced track); Miriek v. Morton (1901) 62 Kan. 870, 64 Pac. 609 (part of appa- ratus changed without the knowledge of the servant) ; Savannah & 8. R. R. Co. V. Pughsley (1901) 113 Ga. 1012, 39 S. E. 473 (defective tool); Wheelei V. Wason Mfg. Co. (1883) 135 Mass 294 (unfenced machinery) j Tennesset 5di DUE CARE TESTED BY SERVAlCT'S KNOWLEDGE. 151 (2) those in which the servant's want of suflicient experience to en- able him to appreciate the risk is a material factor." Other cases illustrating, though not primarily dependent upon, the doctrine that it is negligence to require a servant to encounter risks not understood by him, will be found in the chapter (xxv.) dealing with injuries received outside the scope of the work originally con- tracted for. The general question, What risks are deemed to be constructively known to the servant ? is treated in a later portion of the work (chap- ter XXI.). 59. Such a situation sometimes treated as a species of deception. — (Compare § 236, post.) — In many of the cases in which the doctrine stated in the preceding section has been recognized expressions are met which appear to commit the courts to the theory that a master Goal, I. & R. Go. V. Gurrier (1901) 47 C. C. A. 161, 108 Fed. 19; New Orleans & N. E. B. Go. V. Clements (1900) 40 C. C. A. 465, 100 Fed. 415. In Phelps V. Ghicago & W. */. It. Go. (1900) 122 Mich. 178, 84 N. W. 66, the court aban- doned the position taken at the first hearing ([1899] 122 Mich. 171, 81 N. W. 101), and, on the ground that a brakeman was not familiar with the surroundings and had had no opportu- nity to make himself acquainted with them, held that he was entitled to re- cover for injuries caused by a fish chute, so close to the main track that there was no room for his body between it and the side of a car. A distinction was taken between the duty of the com- pany as regards such structures when adjacent to the main track, and when abutting on a side track, the view of the court being that in the latter case they are a common arrangement, reasonably necessary for the purposes of the com- pany's business, and that all trainmen are therefore affected with knowledge that they may be encountered in that situation (see opinion on first hear- ing) ; while in the former case the ele- ments which thus charge a servant with notice are wanting. This wire-drawn differentiation is a most instructive ex- ample of the shifts to which judges are occasionally put when some particu- larly hard case tempts them to disre- gard a line of precedents, and diverge, for a brief space, into the paths of com- mon sense. » As regards an inexperienced brake- man, it is negligence to use two kinds of hand brakes, differing only in size, where one kind is inherently dangerous in the hands of one who does not under- stand its properties. Louisville & N. R. Go. V. Binion (1894) 107 Ala. 645, 18 So. 75. The act of an employee in- trusted with the management of a ma- chine, in putting a boy without experi- ence at work at a business and on a machine which a man of ordinary sa- gacity would know to be perilous, is wrongful. Buckley v. Gutta PercJia & Ruiter Mfq. Go. (1886) 41 Hun, 450, Reversed in '(1889) 113 N. Y. 540, 21 N. E. 717; but only on the ground that the evidence showed the injury to be merely accidental, and not due to the want of instruction. The risks attend- ant upon the use of an unusual, un- tested, and exceedingly dangerous blast- ing powder which cannot be tamped without inevitable explosion are ex- traordinary as regards a laborer who is unacquainted with its qualities. Spel- man v. Fisher Iron Co. (1870) 56 Barb. 151. To same effect, see Gartter v. Cot- ter (1891) 88 Ga. 286, 14 S. E. 476 (absence of brake on a windlass led to the handles being jerked from the work- man's grasp, and, as it revolved, it struck him). This principle will en- able a servant to recover for injuries due to unguarded machinery, if he does not understand the particular danger which caused the accident. Wheeler v. Wason Mfg. Go. (1883) 135 Mass. 294; Grizzle v. Frost (1863) 3 Fost. & F. 622 (minor servant). Contrast the cases as to unfenced machinery cited in § 55, ante. I5i Master and servant. [chap. vrt. who exposes a servant to an unknown danger is guilty, not merely of negligence, but also of bad faith, or even a quasi fraud. ^ A form of statement which is frequently employed to express this conception is, that a master must answer for injuries caused by the existence of ab- normally dangerous conditions, which are in the nature of a ti'ap, by which word is meant a condition of an instrumentality which is apt to imperil a person doing work with it or near it "without the caution which knowledge of such condition would enable him to exercise."^ ' "It is the master's d\ity to be care- ful that his servant is not induced to work under a notion that tackle or ma- chinery is staunch aotid secure, when, in fact, the master knows or ought to know that it is not so." Paterson v. Wallace (1854) 1 Maoq. H. L. Cas. 748, per Lord Cranworth, C. "The master's liability arises from the fact that he subjects his servant to dangers which, in good faith, he ought to provide against." Pittsburgh & G. R. Go. v. Sentmeyer (1879) 92 Pa. 27.6, 37 Am. Rep. 684. If the extraordinary risks of the service are not explained, such risks, or "those which result from methods of carrying on the business, calculated to mislead the servant to his peril," are not assumed by the servant as risks of his employment. Bethlehem Iron Co. V. Weiss (1900) 40 C. C. A. 270, 100 Fed. 45. "Undoubtedly, a servant has a right to repose confidence in the prudence and caution of his em- ployer, and to rely upon his not putting him in charge of implements which, from improper construction or other cause, are so dangerous that a prudent man would not make use of them. If the servant is injured in consequence of this confidence being abused, he ought to be remunerated." Ft. Wayne, J. d 8. B. Co. V. Gildersleeve (1876) 33 Mich. 133. In this case, Cooley, J., concluded his argument with the state- ment that in the use of the appliance objected to, no confidence which was re- posed in the prudence and caution of the employer had been betrayed, as the difficulties connected with handling it were fully known and understood by the servant, and he voluntarily contin- ued to encounter the risks. "The em- ployer must always act in good faith towards his employee, and see, as far as he reasonably can, that the employee does not take any unknown risks or hazards." Rush v. Missouri P. R. Go. (1887) 36 Kan. 129, 12 Pac. 582. "There are certain things incumbent on the master upon which the servant is entitled to rely, and if the master fails in any of these things, and the servant is thereby led into false security, the master must be responsible." Cook v. Bell (1857) 20 Sc. Sess. Cas. 2d series, 137, per Lord Curriehill. A similar point of view is indicated by the state- ments, — ^that a master must not "use any art to conceal dangers" {Berns v. Gaston Gas Coal Co. [1885] 27 W. Va. 286, 55 Am. Rep. 304) ; that liability for injuries, caused by the servant's obey- ing an order to incur a danger, arises only when the master conceals . his knowledge of, or, at least, fails to make known, a latent danger {Welch v. Braimard. [1895] 108 Mich. 38, 65 N W. 667 ) ; and that all the servant is en- titled to require, where he consents to use a certain machine, is that he shall not be deceived as to the degree of dan- ger. Wonder v. Baltimore & 0. R. Go. (1870) 32 Md. 411, 3 Am. Rep. 143. ^ This definition is suggested by the language of the court in Fredenburg v. 'Northern G. R. Go. (1889) 114 N. Y. 582, 584, 21 N. E. 1049, where the main- tenance of a cattle guard at a place where cars had to be constantly un- coupled to be put on weighing scales was held to be negligence, as to a serv- ant recently hired. The same term is used in the following cases, in which the master's liability was affirmed: Bird V. Long Island R. Go. (1896) 11 App. Div. 134, 42 N. Y. Supp. 888 (plank of crossing, loose and so worn at the edge that a brakeman, stepping on the track to couple ears, was liable to have his foot caught) ; Mohr v. Le- high Valley R. Go. (1900) 55 App. Div. 176, 66 N. Y. Supp. 899 (adjacent tracks curving irregularly, so that they come very close together for some dis- tance, such fact not being noticeable to observers, unless their attention has been particularly called thereto) ; Mas- tin \' Levagood (1891) 47 Kan. 36, 27 Pac. 122 (owners of a threshing ma- S9]- DUE CARE TESTED BY SERVANT'S KNOWLEDGE. Ig3 This conception is also exemplified under tlie converse aspect in those passages in which the servant's familiarity with his environment and the peril to which he was exposed is declared to preclude the inference that he was in any way entrapped or deceived or misled.^ chine are liable for personal injuries to a workman, who, without knowledge that certain wheels and cogs usually covered are uncovered, attempts to oil the machine, and has his hand caught in such cogs ) ; Chicago, R. I. & P. R. Go. V. Clark (1882) 11 111. App. 104 (held proper to submit to jury the question whether a railway company is negligent in maintaining a platform in such a position with regard to a track that a servant is in peril of being caught unawares between it and moving cars). In Spaulding v. Forbes Litho- graph Mfg. Co. (1898) 171 Mass. 271, 50 N. E. 543, it was held that a seat, consisting of a plank laid upon two up- rights, but not nailed down, and pro- jecting so far over one of the supports that it was liable to tip up when the weight of a person was thrown upon it, constituted "as clear a case of a trap as could be imagined," in regard to a servant who had no reason to suppose that the plank was not fastened, and was directed to feed a revolving cylin- der in such a posture that his weight was thrown upon the end of the board at the moment that the cylinder mask opened. The phrase "mantrap" is used in Yorhees v. Lahe Shore & M. 8. R. Co. (1899) 193 Pa. 115,44 Atl.- 335. See also Boloh v. Smith (1862) 7 Hurlst. & N. 736, 31 L. J. Exch. N. S. 201, 8 Jur. N. S. 197, 10 Week. Rep. 387, per Wilde, B., arguendo (covering of hole insufficient, but apparently sufficient) ; Perham v. Portland Electric Co. (1898) 33 Or. 451, 40 L. R. A. 799, 53 Pac. 14 (insulation of electric wires was apparently perfect, but in reality defective). See also the case cited in the note to 46 L. R. A. page 33, subds. III. b; VI. a, 2; VI. c, 6, recognizing the right of servants not in the employ of the defendant, to maintain an action for injuries resulting from risks which come under this description. ' In a leading English case, where the servant failed to recover. Chief Justice Cockburn remarked that "no deception was practised on the plaintiff as to the degree of danger to which he would be exposed," and stated the general rule, with reference to this point of view, in the following words: "If the danger is concealed from him [the servant] and an accident happens before he becomes aware of it, or if he is led to expect, or may reasonably expect, that proper pre- cautions will be adopted by the em- ployer to prevent or lessen the danger, and, from the want of such precautions, an accident happens to him before he has become aware of their absence, he may hold the employer liable." Wood- ley V. Metropolitan Dist. R. Co. (1877) L. R. 2 Exch. Div. 384, 46 L. J. Exch. N. S. 521. In a Canadian case the court, in holding the plaintiff to be un- able to recover for injuries caused by an unguarded machine, declared that there was "no attempt at concealment," although the foreman had told him that some persons had suffered in working the machine, but that he would be all right. This was said to be a very nat- ural expression when the plaintiff was known to be acquainted with similar machinery. Rudd v. Bell (1887) 13 Ont. Rep. 47, 55. An entry in a car in- spector's book, indicating that a car had been placed upon the repair track to have a sideboard put in, and not for the repair of the coupling attachment, does not afford any ground for holding the company liable, on the ground that he was misled, for an . injury to an em- ployee caused by the defective coupling, where he did not see the book until after the accident. Broicn v. Chicago, R. I. & P. R. Co. (1898) 59 Kan. 70, 52 Pac. 65. Similar phraseology is found in Finnell v. Delaware, L. & W. R. Co. (1892) 129 N. Y. 669, 29 N. E. 825 (unballasted side track) ; Brass- man V. Lehigh Valley R. Co. (1886) 113 Pa. 491, 57 Am. Rep. 479, 6 Atl. 226 (low overhead bridge) ; Bajus v. Syracuse, B. & N. Y. R. Co. (1886) 103 N. Y. 312, 57 Am. Rep. 723, 8 N. E. 529 (defective engine) ; Goodes v. Boston & A. R. Co. (1894) 162 Mass. 287, 38 N. E. 500 (switch close to a track is not a trap or hidden defect as to a brakeman acquainted with his work) ; Atchison, T. & 8. F. R. Go. v. Plunkett (1881) 25 Kan. 188 (brakeman injured by lumber projecting over end of car) ; The Maharajah (1889) 40 Fed. 786. 154 MAStEfe ANi) SEtlVANf . [chap. tit. Language of this sort, however, is obviously not intended to be taken too literally, for it is now well settled that an action sounding in fraud cannot be maintained without proving the wrongful act to have been designedly and purposely done, and that proof of such de- sign and purpose is not a prerequisite to recovery where the gravamen of the complaint is negligence.* That it would be preferable, under these circumstances, to avoid using forms of expression which tend to obscure the fundamental difference between these two distinct kinds of torts seems to be scarcely open to question." According to one case a master may, with impunity, maintain a "mantrap," where the instrumentality in question is an ordinary one, and of first-class construction.® But unless the word is here used in a very loose sense, implying merely a very dangerous thing, this ruling is plainly inconsistent with the general principle developed in this chapter, and with the rationale and qualifications of the doctrine by which a master is allowed to carry on his biisiness in his own manner. See §§ 35, 39-41, ante. 60. Master no longer liable after he has given the servant notice of the existence of a risk previously unknown to the latter. — (Compare the cases cited in chapter xvi.^ post, on the master's duty to instruct young and inexperienced servants.) — It is obvious that, either under the theory discussed in this chapter, or imder the theory of extraordi- nary risks created by the breach of certain absolute duties, and the assumption of those risks, as a separate fact, infen-ed from the serv- ant's continuance of work with a knowledge of their existence, iho effect of informing him that tlie employment involves exposure to some particular risk which, if it should actually have eventuated in disaster while he was ignorant thereof, would have constituted a cans? of action, is to transfer that risk to the category of those for which the master cannot be made responsible.-"^ In other words, where a * See 2 Bevin, Neg. pp. 1624 et seq.; "Stewart v. 'Newport News & M. Tal- Shearm. & Redf. Neg. § 20. ley Go. (1890) 86 Va. 988, 11 S. E. 88') "In a well known English ease it was (cited with approval in Richmond & D. remarked, by Brett, M. R., that "to lay R. Co. v. Risdon [1891] 87 Va. 335, 12 a trap means, in ordinary language, to S. E. 786) (eoal chute near track). do something with an intention." '^ Wonder v. Baltimore & 0. R. Co. Heaven v. Pender (1883) L. E. 11 Q. (1870) 32 Md. 411, 3 Am. Rep. 143; B. Div. 503, 52 L. J. Q. B. N. S. 702, 49 Nugent v. Kauffman Milling Co. (1895) L. T. N. S. 357, 47 J. P. 709. In New- 131 Mo. 241, 33 S. W. 428; Roth v. ark Electric Light & P. Go. v. Garden Northern Pacific Lumherinq Co. (1889) (1896) 37 L. R. A. 725, 23 C. C. A. 649, 18 Or. 205, 22 Pac. 842; Miirphij v. Wa- 39 U. S. App. 416, 78 Fed. 74, the court bash R. Co. (1893) 115 Mo. Ill, 21 S. limited the use of the word "trap" to W. 862; Bethlehem Iron Co. v. Wcit-s cases where there is a "purpose to (1900) 40 C. C. A. 270. 100 Fed. 4"> : ensnare." Northern C. R. Go. v. Husson (1882) § 61] DUE CARE TESTED BY SERVANT'S KNOWLEDGE.' 155 master hires a servant to do something wliich will expose him to ab- normal dangers, all that can he required of the master is that he shall see that the servant is informed with respect to all the dangers and hazards incident to the work ; and when this is done the servant will assume all the risks and hazards of his employment.^ The statement of an employee at the time of the contract of employment, that he is accustomed to the work, excuses the employer from explaining to him peculiar dangers ordinarily incident to such work; but it does not qualify the obligation of the master to furnish reasonably safe appliances, or excuse him from liability for any neglect so to do.^ For a further discussion of this subject, see the chapter which deals with the master's duty to instruct and warn his servant (xvi.). B. Theoet discussed and criticized. 61. Extent of the immunity which the master secures by the the- ory. — It is manifest that the effect, both of the theory developed in the foregoing sections and also of the particular phase of the doc- trine of absolute duties to which, in its practical operation, that theory is equivalent (see § 55, ante), is to extend the master's liberty of action in respect to the quality of his instrumentalities and meth- ods far beyond the limits fixed by the principles discussed in the pre- ceding chapters. If negligence is not predicable of the maintenance of extraordinary risks which the servant appreciates, or if, supjMS- ing such maintenance to imply negligence, the servant's knowledge charges him, as a matter of law, with their assumption, the conclusion is inevitable that, as to any servant who understands the conditions and the risks arising therefrom, a master may, without being affected with legal culpability, carry on his business with instrumentalities 101 Pa. 1, 47 Am. Rep. 690 (where not Smith v. Baher [1891] A. C. 325, 359, only was the danger obvious, but the 60 L. J. Q. B. N. S. 683, 65 L. T. N. S. servant had received a special warning 467, 55 J. P. 660, 40 Week. Rep. 392; on the very day of the accident) ; Johnson v. St. Paul, M. & M. B. Co. Schultz V. Bear Creek Ref. Co. (1897) (1890) 43 Minn. 53, 44 N. W. 884; Uy- 180 Pa. 272, 36 Atl. 739. ers v. Chicago, St. P. M. d 0. R. Co. "Rush V. Missouri P. B. Co. (1887) (1899) 37 C. C. A. 137, 95 Fed. 406 36 Kan. 129, 12 Pac. 582. That the ob- (dissenting Caldwell, J.) ; The Sara- ligation of the master is, in the alter- toga (1898) 87 Fed. 349. native, either to provide reasonably safe " Steen v. St. Paul & D. R. Co. (1887) appliances, or to notify the servant of 37 Minn. 310, 34 N. W. 113. the danger, was also recognized in 156 MASTER AND SERVAlSfT. [chap. VH. that are defective and in bad repair, and by metbods wbieb are ab- normally dangerous. This conclusion the courts have not been at all backvirard in drawing. So far as common-law principles are con- cerned, there is no reason why an employer who has shipped a crew upon a "coffin ship," which fulfils its natural destiny by going to the bottom and drowning all hands, should not escape liability, if only the men were aAvare of the actual condition of the funeral craft which they were hired to navigate. 62. Ultimate basis of theory is economic rather than juristic. — In the last analysis, this conclusion must rest upon the hypothesis that the fear of losing renmnerative work does not deprive of its vol- untarj^ quality the action of a servant who enters or continues in an employment with a knowledge that it involves extraordinary hazards. To obtain an adequate support for this hypothesis, it is necessary to accept the most extreme doctrines of the laissez faire school of sociolo- gists. The nature of the relation between those doctrines and the conclusion stated above will be more readily understood if we advert to the fact that it was first announced, in all its repulsive nakedness, by the late Lord Bramwell, one of the straitest of the sect of those economic Pharisees whose Gamaliels were such writers as Eicardo and John Stuart Mill. It is not too much to say that the opinion de- livered by him in Dynen v. Leach,^ has contributed more largely than any other judicial utterance to establish the principle of assump- tion of risks, in the rigoroiis and unmerciful form in which we now have it. The judgment that the master was not liable in that case mirrors, most instructively, the views of a generation which was only induced, with the greatest difficulty, to enact such humanitarian leg- islation as the truck acts and the factory acts. Tre length to which the decision goes v.dll be better understood when we point out that the ap- pliance which caused the injury had been deliberately substituted for one of the safer type, generally used, and for no other reason than that it was less exyjensive. Indeed, the report shows very clearly that the master had been guilty of the most cynically reckless neglect of his duties. Upon this state of facts we find Lord (then Baron) Bramwell discoursing as follows : ''There is nothing legally wrongful in the use by an employer of > (1857) 26 L. J. Exeh. N. S. 221. [IS.'iS] 3 Hurlst. &. N. 258, 259, 27 L. Considering the far-reaching effects J. Exch". N. S. 325), must be regarded of this ruling, the fact that the so- as one of the most amusing instances on called "authorized reporters" omitted record, of the inability of such report- all mention of this case "because ers to estimate the comparative import- no point of law was decided by it" anee of decisions, (see note to Willicmis v. Glough § 62] DUE CAKE TESTED BY SERVANT'S IvNOWLEDGE. 157 works or machinery more or less dangerous to his workmen, or less safe than others that might be adopted. It may be inhuman so to carry on his works as to expose his workmen to peril of their lives, but it does not create a right of action for an injury which it may occa- sion, when, as in this case, the workman has known all the facts, and is as well acquainted as the master with the nature of the machinery, and voluntarily uses it."^ The note sounded in tliis passage has been echoed and re-echoed ad nauseam through all the countries in which the common law is admin- istered. The following passage from a case which has been so con- stantly cited that it may fairly be regarded as a fountain of law on this subject will sufSce to show how closely tlie American judges have followed in the footsteps of their English brethren : "Every manufacturer has a right to choose the machinery to be used in his business, and to conduct that business in the manner most agree- able to himself, provided he does not thereby violate the law of the land. He may select his appliances and run his mill with old or new machinery, just as he may ride in an old or new carriage, navigate an old or new vessel, or occupy an old or new house, as he pleases. The employee, having loiowledge of the circumstances and entering his service for the stipulated reward, cannot complain of the peculiar tastes and habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service."® How effective a bulwark for the master this theory has proved to be is only too notorious to students of this branch of law. Behind it, that "inhumanity" which, as several judges have conceded, may be predicated of the conduct of employers who are at the same time free from legal liability, has found a secure shelter.* That the standard of ''In Smith v. Baker [1891] A. C. 325 Another pertinent passage is the follow- (p. 346), 60 L. J. Q. B. N. S. 683, 65 ing, from a recent judgment rendered L. T. N. S. 467, 55 J. P. _660, 40 Week, by a court which has always construed Rep. 392, Lord Bram well 'reiterated the the doctrine of assumption of risks very opinion thus expressed, remarking that strongly in favor of the employer: a master is entitled to carry on his "Obvious imperfections in methods or business in a dangerous way, "if the machinery, existing at the time of the servant is foolish enough to agree to it." employment, cannot be made the basis 'Hayden v. Smithville Mfg. Co. of a liability in favor of an employee (1861) 29 Conn. 548. Compare the who suffers an injury in the course of language used by the supreme court of his employment, for the reason that the Massachusetts, to the effect that it is employer has a. right to have and use the legal right of every person to carry imperfect methods and tools, and to ask on a business which is dangerous, either others to enter his employ to aid him in itself, or* in his inanner of conduct- in such use, and in so doing does not ing it, if it is not unlawful, and inter- undertake to insure the employee." feres with no rights of other persons. Ragon v. Toledo, A. A. & N. M. R. Co. Coomls V. tiew Bedford Cordage Co. (1893) 97 Mich. 265, 56 N. W. 612. (1869) 102 Mass. 572, 3 Am. Rep. 506. *In addition to the remarks of Lord 158 MASTER AND SERVANT. [chap. VII. d\itj which it fixes for employers is often preposterously low is ap- parent from the decisions cited in the present chapter, as well as from numbers of others which are collected in that chapter which deals more particularly Avith the doctrine of assumption of risks as a dis- tinct defense where negligence is established (xvii.). 63. Suggested exception in cases of a temporary forgetfulness of a known danger. — The harshness of the general principle might be somewhat relieved if the servant were allowed to maintain an action in cases of this type, where the accident occurred by reason of a tem- porary forgetfulness of the conditions which caused it, and this for- getfulness was excusable under the circumstances. This point of view is, hov/ever, only possible where the right of recovery is made to turn exclusively upon the question whether the servant was in the ex- ercise of due care.-' A doctrine which imputes to the servant an ac- ceptance of every risk which is ]?nown and understood necessarily im- plies that he takes the situation, as a whole, for better or worse. It must be quite immaterial, therefore, whether the particular peril which eventually produced the injury was or was not present to his thoughts at the critical moment, and whether he ought or ought not Bramwell, already referred to, the fol- lowing eases may be referred to as showing that the eouits fully recognize, but are in no wise influenced by, the fact that the doctrine of assumption of risks will, in many instances, divorce law from morality. In Woodley v. Metropolitan Dist. R. Co. (1877) L. R. 2 Exch. Div. 384, 46 L. J. Exch. N. S. 521, Cockburn, Ch. J., observed, in the course of his opinion: "Morally speak- ing, those who employ men on danger- ous work without doing all in their power to obviate the danger are highly reprehensible." In a very recent Vir- ginia case it was declared not to be neg- ligent to adopt an "inhuman method" of doing work, if the dangers are obvi- ous and the servant is "foolish enough" to consentto do the work in that manner. Robinson v. Dininny (1898) 96 Va. 41, 30 S. E. 442 (removing debris from an old shaft, by excavating from a passage which entered it at the bottom ) . In Derby v. Kentucky G. R. Co. (1887) 9 Ky. L. Rep. 153, 4' S. W. 303, it was ad- mitted that "consideration for human- ity should certainly prompt" a railway company to construct its overhead bridges at such a height above the tragi? that an employee standing upon any car used on the road could pass in safety under them." But the court which expressed this just sentiment has rendered some decisions which are es- sentially, if not in the letter, inconsist- ent with it. See § 30a, b, ante. In Bridges v. Tennessee Goal, I. & R. Go. (1895) 109 Ala. 287, 19 So. 495, the court declined to break in upon the rigid rule, although the evidence showed that the controlling inducement to continue working was the employee's desire to serve the defendant, and save it from inconvenience in an emergency. ^See West v. Southern P. Go. (1898) 29 C. C. A. 219, 56 U. S. App. 323, 85 Fed. 392; Wallace v. Central Vermont R. Co. (1893) 138 N. Y. 302, 33 N. E. 1069, and the Kentucky cases cited in § 30a, b, ante. The question whether, as a matter of public policy, the stand- ard of diligence required of the master should not be raised, in view of the cer- tainty that it is unjust to expect that servants, invited to take part in a com- plicated business, will constantly keep in mind the numerous perils which meet them from hour to hour, is a wholly different matter, which we will return to later on. gee | 65, fiost. § 64] DUE CARE TESTED BY SERVANT'S KNOWLEDGE. 159 tx) have remembered its existence. See chapter xviii., post, regarding the relation between the defenses of assumption of risks and contribu- tory negligence. Accordingly, in cases where the former of these de- fenses is relied upon, we iiud the courts holding, with the most per- fectly logical barbarity, that the servant's position is not in the least strengthened by the fact that, owing to the suddenness of the emer- gency, or his close attention to the work in hand, he conducted himself like a person to whom the conditions were unknown.^ 64. Theory inconsistent with a true conception of public policy. — That the Ehadamanthine doctrine which prevents the servant from obtaining compensation in such cases is repugnant to the unsophisti- cated mind of the average layman is well known to every lawyer. It has, as is abundantly demonstrated by the persistency with which juries disregard it, been introduced into our jurisprudence in the 'Baylor v. Delaware, L. & W. R. Go. strikingly exemplified, is Rohan v. Met- (1878) 40 N. J. L. 23, 29 Am. Rep. ropolitan Street R. Co. (1901) 59 App. 208; Baltimore & 0. R. Go. v. Strieker Div. 250, 69 N. Y. Supp. 570, where the (1878) 51 Md. 47, 34 Am. Rep. 291; plaintiff fell through a space at the end Louisville & N. R. Go. v. Hall (1888) of a bridge in a boiler room, while he 87 Ala. 708, 4 L. R. A. 710, 6 So. 277; was making his way along the bridge Bengtson v. Gliicago, St. P. M. & 0. R. to shut off steam which was escaping Go. (1891) 47 Minn. 486, 50 N. W. 531. after an explosion. The unfortunate Tlie practical effect of this rule evi- servant, it will be noticed, was here dently is, that a servant is required, at hurriedly feeling his way along the his peril, to exercise in some cases of bridge, through a room darkened by the this class, — ^notably, those involving the vapor of the escaping steam, and, in perils produced by low overhead bridges the confusion caused by the explosion, on railways, — a, degree of skill and vigi- naturally thought more about doing his lance which is equal to, if not greater duty than about conditions which, un- than, that which, as we learn from der ordinary circumstances, would not Mark Twain's delightful book, "Life on have been a source of any danger. the Mississippi," was possessed by an See further, as to this class of cases, expert pilot, who, when his hour of § 29, ante, and §§ 69, 70, 281, post. duty arrived, was expected, even on the That the fact of the servant's having, darkest night and in the most tempest- at the time of the accident, forgotten uous weather, to comprehend, at a for the moment the existence of a pre- glance, the exact position of the boat viously known risk is a wholly irrele- without any instruction from his pred- vant consideration, where the defense ecessor. The analogy may be thought relied upon is an assumption of that rather frivolous for a grave legal trea- risk, seems to have been lost sight of in tise. But this is not the only instance a late Rhode Island case, in which the in which the central doctrine of this court, in denying recovery on the branch of jurisprudence has, when rig- ground that the injury was caused by idly and ruthlessly applied, led up to an obvious risk, which was presumably results so monstrous that the commen- appreciated and assumed by the plain- tator is tempted to abandon serious ar- tiff, emphasized the fact that there was guments for a brief space, and resort no exigency or unusual circumstances to a kind of criticism which finds its demanding his exclusive attention. In justification in the unanswerable ques- all the cases mentioned as recogniz- tion of the Roman satirist: ing this implied exception to the gen- Ridentem dicere verum eral rule, the actual defense put for- Quid vetat? ward was contributory negligence. Di- A recent decision, in which the harsh sano v. New England Steam Brick Go. consequences to which the doctrine of (1898) 20 R. I. 452, 40 Atl, 7, a,ssumed risks sometimes leads are very 160 MASTER AND SERVANT. [chap. vu. very teeth of public opinion. This popular disapproval is usually looked upon merely as one of the manifestations of that bitter feeling which the tyrannical use of capital, and more especially capital as wielded by corporations, has engendered in our times among the classes upon which this unscrupulous exei'cise of the power of the purse has weighed most heavily. If this explanation be correct the administrators of the law, boimd, as they are, to be no respecter of persons, have simply done their duty in ignoring a sentiment emanat- ing from such a source. But legal rules are defensible only in so far as they correspond with principles of abstract justice, and there is al- ways room for at least a suspicion that this correspondence does not exist in the case of any rule which jurors lose no opportunity of evad- ing. It is worth wliile, therefore, seriously to consider whether, after all, there is not, at the bottom of this general hostility, something of which jurisprudence may, without being untrue to itself, take notice, - — whether, in short, this hostility is not based upon conceptions which are thoroughly and essentially juridical, struggling for expression in an irregular, and often times illogical, manner. We think that an in- vestigation of the subject will disclose some weighty reasons for tak- ing the position that the simplicitas laicorum has, in this instance, ob- tained a clearer insight into the true rationale of the situation than the trained intellects of the judges. The rule which leaves a master at liberty to carry on his business with any instrumentalities which he may think proper to use, pro- vided the servants who will have to handle or be near them in the course of their work, fully understand the situation and appreciate the risks, is conceded to be an exception to the general principle that "no man may, in conducting his business, unnecessarily disregard the rights of others, whether employees or strangers."^ A salutary prin- ciple like this, which constitutes the very foundation stone of pri- vate rights, is not lightly to be broken in upon, and the grounds upon which any exception to it claims recognition should be closely scrutin- ized. Can it fairly be said that the reasons for thus putting employ- ers in a class by themselves are stronger than those which would sub- ject tJiem to the same responsibility as other persons ? The doctrine which thus segregates employers has been referred by the courts to several considerations, to one or other of which greater prominence has been assigned according to special circumstances which happened to be under review. But, for practical purposes, it ' Hayden v. Smithville Mfg. Co. (1861) 29 Conn. 548, § 64] DUE CARE TESTED BY SERVANT'S KNOWLEDGE. 161 must stand or fall according to the truth or falsehood of two theories, which, although distinct, are yet, in some measure, interdependent. The hypothesis underlying one of these is that, on the whole, it is hest for the commonwealth at large that every man should be suffered to manage his property — whether that property be represented by cap- ital, or by a capacity for performing certain duties — in any manner which does not in\'olve a breach of some positive law. The hypothe- sis underlying the other is that, in those civilized communities with which alone our jurisdiction is concerned, employer and employed contract with each other upon an equal footing, and are, therefore, properly treated as voluntary agents in respect to the inception, con- timiance, and termination of tlieir relations. Compare § 55, ante. The essential meaning of ihe former of these theories is that the courts, by virtue of the general power which they exercise, of confer- ring from time to time a legal sanction upon rules of conduct which have no other foundation than public policy, have decreed that cases involving the liability of an employer to an injured servant shall be determined upon the assumption that what is commonly known as "paternal government" is ordinarily deleterious to those whom it is intended to benetit, and therefore justifiable only in cases where it is absolutely essential for the purpose of obviating some greater evil. In the case of the contract of employment, the existence of this prerequi- site of a clear necessity is supposed to be clearly negatived, for the rea- son that matters will regulate themselves satisfactorily through the mere operation of the feeling of self-interest both in the master and in the sen'ant. The master, we are told, will be fully alive to the fact that, in these days of keen competition, the business man who uses poor and defective appliances will be unable to hold his ground against those who avail themselves of all the improvements which the progress of invention places within their reach, and keep both their plant and their staff in a high state of efficiency. The servant, it is said, will realize that the same conditions which conduce to the pros- perity of the master must also conduce to his own comfort and safety, and will, tlicrefore, shun any service in which those conditions are not obtainable.^ ^ As a type of the numerous cases in way" made the following remarks: which this line of argument is exempli- "Any form of car a railroad company fied, we may refer to Michifim, C. 11. may select for use must be one that, Co y l^mil'hson (1881) 4."> ?ilicli. 21:2. with rare, can be coupled safely, or the 7 isT W 791 where Judge Cooley, in company could not afford to operate its discoursing on the text that, "in the road by means of them. With needless main the state must leave every man exposure of its men to danger by the to manage his own business in his own use of unsuitable cars, the company Vol.^I. M. & S.— 11. 162 MASTER AND SERVANT. [chap. vn. The only flaw in the beautifully simple theory thus outlined is, that it reposes upon a supposititious state of facts which is notoriously op- posed to the teachings of experience. On the one hand, although there are numerous capitalists who comprehend that it is, in the long run, for their advantage to procure the best instrumentalities and to keep them in good order, there are quite as many, if not more, who either do not comprehend this, or, what amounts to the same thing in tlie present connection, are constantly acting as though they did not comprehend it. The result is, that a large proportion of the available capital of the civilized world is expended upon instrumentalities so imperfect that their use will carry the business of the employer, more or less rai)idly, to ruin, and, in the meantime, create for the employees much avoidable danger of a more or less serious character.^ It is rather a startling position to take, that public policy requires judges to take under their protection a doctrine which not only operates as a license to the master to employ his money unwisely, either because he is simply an incapable manager, or because his greed for temporary proi:ts diverts him from the course which he knows to be the right one, but also leaves him free to imperil, by his unwisdom, the lives and limbs of his servants. How far a court, in fixing the degree of care which a master is bound to exercise in respect to his servants, is en- titled to consider the circumstance that a system of business which is profitable to the master, — for any considerable length of time, at least, — will not, ordinarily, involve any unnecessary danger for the serv- ant, is a question to which it is not easy to give a definite reply. But surely, if expediency is to be imported at all into the question, and the courts are to take a hand in promoting the industrial efficiency of the nation, a theory countenancing an employment of capital which oper- ates as a constant menace to the personal safety of those whom the capitalist invites to take service under him is rather a sorry one to favor. It does not, by any means, follow that, because judicial ac- tion, with a view to improving the plant of an employer, would be un- justifiable, if it were taken solely on the ground that his financial prosperity would thereby be promoted, the courts should abstain from declaring that such mismanagement shall be at his own risk, so far as it may unnecessarily endanger the lives and limbs of the employees. would inevitably subject itself to pub- 'Compare the criticism at the close lie odium and disfavor, casualties to of § 47, ante, upon the doctrine that the property would be increased, and, if it master's exercise of due care should be could succeed in manning its road with treated as an irrebuttable presumption laborers, it must pay them wages in- whenever he is shown to have con- creased by the risks of danger." formed to common usage. § 64] DUE CARE TESTED BY SERVANT'S KNOWLEDGE. 163 The new sociology, which, in this respect, is merely a revival, under a different form, of that -which prevailed before the apostles of laissez faire commenced their mission, is laying more and more stress upon the principle that the duties of capital are correlative rights, and the ■ legislatures, acting in full harmony with tlie views of the prof oundest thinkers of our day, are holding the possessors of capital to an ever more and more strict accountability for the proper discharge of those duties. It would eei-tainly be quite in harmony with the ideas wliich pervade this sociology, to affirm that an employer is derelict in respect to his obligations, if that part of the accumulated wealth of the com- munity, in the enjoyment of which he is secured by the governmental _ machinery, is used by him in such a way as to tempt his fellow citi- zens to expose themselves to dangers which are at once avoidable and likely to cause serious bodily harm. The result of such injuries as are commonly received by those engaged in modem industrial occu- pations is frequently the loss, partial or complete, of the only means which they have of supporting themselves and lieir families. It is surely not unreasonable to argue that any employer who thinks fit to conduct his business in such a way that it will, in the long run, inev- itably entail the maiming or death of a certain number of citizens, and, consequently, the diminution of the public resources and the in- crease of the public burdens, ought to be, at least, required to bear all the responsibility for such acxjidents as may occur. Even if the re- sults of the uncontrolled play of self-interest had been satisfactory, in the sense assumed by the courts, the state is fairly entitled to say that any methods of business, through which the use of capital becomes a temptation to citizens to expose themselves to any perils greater than those wliich are necessarily inherent in each employment, even where the appliances are kept up to a proper standard of efficiency, should be treated as a breach of social duty, in such a sense that the judiciary ought to accord them no active encouragement. Much more should this view of public policy be decisive when the presumptions indulged by the courts are utterly at variance with facts. It may be conceded that competition between employee, and the natural preference of employees for concerns which are properly managed, will often cre- ate conditions of safety as nearly ideal as can reasonably be expected. But the residuum of cases in which these causes fail to operate is so large that the most elementary principles of a scientific induction are violated if they are made the foundation of a general rule.* * It is surprising to find how little im- vious aspect of the matter by the courts portance has been attributed to this ob- which have, for the last seventy years, 164 MASTER AND SERVANT. [chap. vii. 65. Servant not really a voluntary agent. — So far, therefore, as pub- lic policy is a factor in tlie question, the true conception of the situa- tion seems rather to be that the state has a right to see that the bodily and mental faculties of its citizens shall not be impaired unneces- sarily. The true force of this consideration will be more clearly understood from an examination cf the second of the theories to ■which the employer's liberty of action is referred, viz., that, as he and the servant are on an equal footing, the latter, in regard to anything which he does with a full appreciation of the i-isks involved, is to be treated as a ^'oluntni'y agent, not subject to any coercive influence which will save him from being chargeable with the consequences either of con- tributory negligence or of an assumption of the risks of his position. . The essential weakness of this theory is that it commits the courts to the anomalous position tliat actual constraint is something different from legal constraint. Upon the average man it is certain that the fear of the disagreeable, and, it may be, frightful, consequences which will almost certainly ensue from the failure to obtain work or from the loss of a position, must always operate as a very strong coercive influence, indeed. To speak of one whom that fear drives into or de- tains in a dangerous employment as being a voluntary agent is a mere trifling with words. The courts which, under the inspiration of the tenets of laissez faire economists, declare that the only coercion of which the law can take notice in the case of an adult of full age and ordinary intelligence is physical coercion^ are not only guilty of a flagrant petitio principiij but also stand sponsors for a view which is been developing the doctrine of assump- member of it, as in the question tion of risks. The extreme rarity of whether he should pay 8 per cent or 6 such remarks as the following renders per cent interest. Yet, by no means them doubly precious: "The state has which human wit can devise, can he an interest in the lives of her citizens, make a valid contract to pay more than and will not [in view of the actual de- 6 per cent in this state." Simpson v. cisions of the courts, the learned judge New York Rubber Co. (1894) 80 Hun, ought rather to have said shovild not] 417, 30 N. Y. Supp. 339. "The opera- permit an employer needlessly to im- tion of railroad trains is essentially peril the lives of his employees. The highly dangerous, and it is a duty of very highest consideration of public railroad companies, too plain for dis- policy demands an enforcement of this eussion, to use all reasonable skill to rule." Myers v. Chicago, St. P. M. & mitigate, tolerating nothing to aggi-a- 0. R. Co. (1899) 37 C. C. A. 137, 95 vate, the necessary danger. This is Fed. 406, per Caldwell, J. "The state not merely a private duty to individ- has great interest in the protection of uals concerned, but a public duty to the its members, and this of the most utili- state, concerned in the welfare of its tarian character. In the case of a citizens." Dorsey v. Phillips & C. maimed employee, he and his family are Gonstr. Co. (1877) 42 Wis. 583. likely to become a public charge; the "See, especially, the opinions deliv- same is true of the family of an em- ered by Lord Bramwell, — decidedly the ployee killed. The community Avould chief of the judicial exponents of lais- seem to have as much interest in the ses faire ideas, — in ilemberry v. Great protection of the life and limbs of a Western R. Go. (1889) L. R. 14 App. 05] bUE CARE TESTED BY SERVANT'S KNOWLEDGE. 165 at variance both with science and common sense. The real position, of course, is that his "poverty, and not his will, consents." It is simply amazing that, in these rationalizing days, when every dogma is being subjected to a searching analysis, any considerable body of educated men should continue to determine the rights of citizens on the assumption that physical compulsion may be predicated of an act Avhich a servant does because he fears the suffering produced by the stroke of the whip or a bludgeon, and not of an act which a servant does because he fears the suffering produced by inanition. If it were not for the intensely serious nature of the subject, one would be dis- posed to say that a doctrine which pretends to differentiate between Ihe bodily pain caused by a blow, and by star^i-ation, partakes largely of the ludicrous. The bald absurdity of decisions based upon this distinction cannot be disguised by vouching in aid the maxim, Volenti Gas. 179, 58 L. J. Q. B. N. S. 563, 61 L. T. N. S. 566, 38 Week. Rep. 145, 54 J. P. 244, and Smith v. Baker [1891] A. C. 325, 60 L. J. Q. B. N. S. 683, 65 L. T. N. S. 467, 55 J. P. 660, 40 Week. Rep. 392. (Extracts are given in the subsequent chapter which deals with the maxim. Volenti non fit injuria.) The followinig passage will serve as a typical exposition of this view, as it is applied by American courts : "Morally, to coerce a servant to an employment, the risks of which he did not wish to encounter, by threatening, otherwise, to deprive him of an employment he can readily and safely perfoi'm, may sometimes be harsh; but, when one has assumed an employment, if an addi- tional and more dangerous duty is added to his original labor, he may ac- cept or refuse it. If he has an execu- tory contract for the original service, he may refuse the additional and more dangerous service, and, if for that rea- son he is discharged, he may avail him- self of his remedy on his contract. If he has no such contract, and knowingly, although unwillingly, accepts the addi- tional and more dangerous employment, he accepts its incidental risks." Leary V. Boston & A. R. Go. (1885) 139 Mass. 580, 52 Am. Rep. 733, 2 N. E. 115. The "average man," however, is not al- together unrepresenied on the bench, as passages like the following show: "The doctrine . in its effects is cruel and oppressive towards the employees, who are thus compelled to choose be- tween employment with dangers known to them, and idleness with safety. The necessities of nature — bread and rai- ment — will compel them to take even dangerous employment rather than idle- ness with want. Employers thus hold a whip over their employees, forcing them to perform services attended by danger arising from the negligent acts of the employers themselves." Patton V. Central loica R. Go. (1887) 73 Iowa, 306, 35 N. W. 149, per Beck, J. "The necessities of laboring men are often very great. The necessity of provid- ing food for themselves and families may drive them to accept employment at the peril of their lives. But an em- ployer does not obtain a license to Icill his employees with impunity, by proclaiming his purpose to subject them to unnecessary and needless per- ils, — to perils that a reasonably pru- dent man, having a due regard for hu- man life, would remove. Common humanity demands this." Myers v. Chicago, St. P. & M. R. Go. (1899) 37 C. C. A. 137, 95 Fed. 406, per Caldwell, J. But it should be observed that the judges who thus "deviated into common sense" were here expressing their indi- vidual opinions on the matter, the other members of the courts taking the ordi- nary view of the situation. In this connection we may also refer to the re- marks of Lord Esher, and Lindley, L. J., in Yarmouth v. France (1887) L. K. 19 Q. B. Div. 647, 657, 661, 57 L. J. Q. B. N. S. 7, 36 Week. Rep. 281, declaim- ing the theory that a servant who con- tinues to use a defective instrumental- ity because he fears to lose his situation is volens. 166 MASTER AND SERVANT. [chap. vll. non fit injuria, for the ultimate question to be settled is whether, as a matter of fact, the servant, confronted with the alternative of throw- ing up remunerative work or of encountering some abnormal peril, is really volensj and the determination of this question necessarily in- volves an investigation into the actiial relations of the master and servant, and the true character of the influences to which the servant is subjected. 66. Alternative theory suggested as being the correct one. — It would seem, then, that neither of the theories to which the right of an em- ployer to conduct his business with abnormally dangerous appliances is referred will bear close examination. The only support of one is an hypothesis which represents a false and discredited view of public policy. The only support of the other is an hypothesis which ascribes to the word "voluntary" a m.eaning which is at variance with the most obvious facts. A connect view of the situation, it is submitted, cannot be airived at, unless we wholly eliminate from the question the element of a freedom of will which has no existence, except in the imagination of a certain school of economists, and resort to iirst principles, for the purpose of ascertaining what standard of diligence is demanded from the employer by those large considerations of public policy upon which, in the last analysis, the whole law of negligence may be said to rest. If we view the subject from this standpoint, all the diflScul- ties of the subject will vanish. All that is necessary is to construe, in a manner appropriate to the relations of the parties to the contract of service, the principle that no person has a right to keep his property in such a condition that persons who, with his consent, are brought into close relations with it, will be likely to receive injury, even though they may exercise all the care which it is justifiable to expect from them under the circumstances. If the degree of care which the serv- ant must exercise in order to escape injury is greater than that which, considering the exigencies of the work, and other matters which are likely to divert his attention and produce a temporary forgetfulness of a known danger, it is reasonable to demand from men of average prudence and average powers of observation, then it may be fairly maintained that the master ought to bear the responsibility of any accident which may occur, quite irrespective of the question whether the sen^ant was or was not aware of the nature and extent of the dan- ger. The acceptance of this principle would not involve any very startling changes in the law as we now have it. It would merely re- quire ITS to fix the standard of care incumbent on the master, with a § 66] DUE CARE TESTED BY SERVAICT'S K:NO^VLEDGE. 107 view to the consideration that, as the implied agreement of the serv- ant is merely that he will use ordinary diligence in the discharge of his functions, it is a breach of duty in the master to keep his instru- mentalities in such a condition that ordinary diligence will not al- ways save the servant from injury. A rule formulated upon this basis would not make the master an insurer, nor would it necessarily render him liable simply for the reason that his appliances were old and imperfect. It would merely make his liability dependent upon whether he had or had not acted unreasonably, and, therefore, negli- gently, in holding out inducements to do work which, at certain con- junctures not unlikely to arise, could not be performed safely without the exercise of a degree of care which no fair-minded, considerate per- son would demand from a servant. Such a rule would not impose any burden upon the employer which a just and sensible man would be unwilling to bear, and would effectually prevent that cruel abuse of the doctrine of assumption of risks, which has done so much to em- bitter the feeling with which capitalists are regarded by the working classes.^ ' The appropriateness of the test of vill. A, post. See, especially, those liability which the writer has here pro- in which courts have sustained the serv- posed as the one to which all other con- ant's right to recover for injuries siderations should be subordinated is caused by dangerous objects alongside recognized, virtually, if not explicitly, of or above railway tracks (§§ 70, 71) ; in many of the cases cited in chapter by unguarded machinery (§§ 76, 77). CHAPTER VITL LIABILITY OF EMPI,OYERS FOE INJURIES CAUSED BY VARIOUS IN- STRUMENTALITIES. 66a. Introductory. A. Injdkies caused by conditions of a normal oe permanent chakactek. 67. Railway tracks; generally. 68. Conditions of the permanent way which affect the safe operation of trains, u,. Location of tracks. h. Bridges. c. Channels for the discharge of surplus water. d. Switches and sidings. 69. Track considered as o footway for servants. a. Location. 6. Roadbed and ties considered as a foot\vay. c. Frogs and guard rails. d. Side tracks and yards. 70. Objects alongside and dangerously near the track. a. Conditions held to import negligence. h. Conditions held not to import negligence. c. Convenience or necessity as justifying elements. d. Employer's liability as affected by the probability of the acci- dent which actually occurred. 71. Objects dangerous to employees on the tops of cars. a. Conditions held to import negligence, ft. Conditions held not to import negligence. c. Convenience or necessity as justifying elements. 72. Want of fencing of railway tracks. 73. Coupling appliances of railway cars and locomotives. 74. Other parts or appurtenances of railway cars and locomotives. 75. Elevators. 76. Unguarded machinery; generally. a. Conditions not reasonably safe. 6. Liability tested by the servant's knowledge or ignorance of the conditions. u. Liability negatived on the ground that a master may carry on his business in his own way. d. Conformity or nonconformity to usage. e. The probability or improbability of injury resulting from the ma- chinery in question. 77. Revolving shafts. 168 § 6Ga] bECTSiONS AS TO VAllIOU^ APPLiAi>fCES. 1(5'J 78. Employer's liability for injuries caused by various other mechanical appliances. 79. Structures. SO. Unguarded openings in floors, open hatchways, etc. 81. Substances generating explosive gases. 82. Substances giving off poisonous fumes. 83. Appliances for giving servants vi^arning of danger. B. Injuries caused by conditioks of an abnokmal, transitoet, or spokadtc CHARACTER. 84. Conditions of railway trades and appurtenances by which the safe oper- ation of trains is affected. 85. Track considered as a footway for servants. a. Track and roadbed itself. 6. Casual obsti-uetions on or near the track. 86. Objects dangerous to employees in moving trains or cars. a. On the track. 6. Alongside the track. c. Above the track. 87. Railway fences. 83. Rolling stock on railways. 89. Vehicles other tlian those used on railways. 90. Appliances designed to support or lift heavy objects. 91. Elevators. 92. Vessels subjected to the pressure of steam. 93. Miscellaneous appliances. 94. Imperfect attachment of parts of apparatus. 95. Abnormal movements of machinery. 96. Changes in the parts of machines. 97. Structures. 98. Injuries caused by falling rucks, earth slides, etc. 99. — by other heavy substances. 100. Unguarded openings. 100a. Surface of paths, floors, etc. 101. Conditions exposing a servant to risk of injury from fire. 102. — from currents of electricity. 103. — from explosions. 104. — from dangerous fluids. 105. Defective lighting. 106. Unseaworthy ships. 107. Inadequate ventilation. 108. Inadequate protection against severe cold. 66a. — Introductory. — In the foregoing chapters the cases have been grouped under headings designed to exhibit the scope and effect ol the o'eneral principles upon which they turn. This method of classi- fication, however, is quite inadequate to bring out fully the extraor- dinary conflict of opinion which exists between the courts with regard to the responsibility of employers for injuries received tmder eircum- 170 MASTER AND SERVANT. [chap. vm. stances essentially identical. This defect it is proposed to supply in the following sections by arranging the decisions with reference to the specific instrumentalities which were the subject of discussion. The chaotic condition into which, as this summary shows, the law has fal- len, as a result of the evolution of doctrine which has been going on simultaneously in a large number of independent jurisdictions, is most deplorable, when it is considered that all those jurisdictions con- stitute parts of what is, socially and economically, a single country, and that the employers who are the defendants in nine tenths of the actions of tliis description are railway companies whose business often extends over several different states. The cases with which we have to deal may be divided, broadly speaking, into two main categories: (1) Those in which the instru- mentality which caused the injury was in its normal condition, the gravamen of the action being that it was negligent to use that kind of instrumentality; and (2) those in which the circumstances were ab- normal and the servant seeks to recover on that ground. As a general rule, the dividing line between these classes is easy to define; but at certain points they fade almost imperceptibly into each other, and it is often far from easy to determine whether a given case should be as- signed to one or to the other. The inconveniences which may arise from this source of difficulty have t-een, as far as possible, obviated by abundant cross-references between the various sections in the two subtitles of the chapter. A. IwJtrElES CAUSED BY COWDITIOITS OF A ITOEMAL OB PEEMANEWT CHAEACTEE. 67. Railway tracks; generally.— The general rule is that any person who maintains a railway as a part of his plant is bound to exercise ordinary care, to the end that it shall be so constructed and maintained as to be reasonably safe as a place of work.^ For the purposes of this '■Fifield V. Northern B. Go. (1860) Wilkie v. Baleighd G. F. R. Go. (1900) 42 N. H. 225; Balcock v. Old Golony 127 N. C. 203, 37 S. E. 204; Taylor B R. Go. (1890) 150 Mass. 467, 23 N. E. c£- 3. R. Go. v. Taylor (1890) 79 Tex. 325; Gorham v. Kansas Gity & S. R. 104, 14 S. W. 918, and the cases cited Co. (1893) 113 Mo. 408, 20 S. W. 1060; in §§ 68, 69, post. A complaint framed Little Rock & Ft. 8. R. Go. v. Voss on the theory that a railroad company (1892; Ark.) 18 S. W. 172; Chicago & had caused injury to a fireman by fail- y. W. R. Co. V. Delaney (1896) 68 III. ing to perform its duty in constructing App. 307, Affirmed in (1897) 169 III. and maintaining a safe roadbed is not 581, 48 N. E. 476; Knapp v. Sioux City demurrable. Chicago & N. W. R. Go. & P. R. Co. (1887) 71 Iowa, 41, 32 N. v. Sioett (1867) 45 111. 197, 92 Am. W. 18; Rosenhaum v. St. Paxil & D. R. Deo. 206. Co. (1888) 38 Minn. 173, 36 N. W. 447; 68] DECISIONS AS TO VAUlOtTS APPLIANCES. 171 rule it is immaterial whether the employer is, as is usually the case, a company engaged in transportation as a common carrier, or a com- pany or individual operating a railway as an accessory to some other business, — as, a coal company,^ or a lumber manufacturer who owns and conducts a railroad running from his mill to the timber.* It is also clear that the employer is equally liable whether he constructed the track through his own agents or acquired it after its completion by another party.* 68. Conditions of the permanent way which affect the safe operation of trains. — a. Location of tracks. — Some decisions treat the location of the track, with regard to its curves and gradients, as being a purely engineering question which a railway company is entitled to settle for itself under the general principle explained in chapter v.^ ante} Others proceed upon the theory that a jury is warranted in finding a railway company giiilty of negligence, where it has located its track with cur\^es so sharp as to create an imminent risk of derailments.^ The inference of negligence may be strengthened by evidence show- ing that the curve in question was peculiarly dangerous, owing to its position with relation to the gradients.* It may also be a question for the jur^' in some instances whether a siding is properly located with regard to the adjacent structures."* ' Eamilton v. Rich Hill Coal Min. Go. (1891) 108 Mo. 364, 18 S. W. 977. 'Bowman v. White (1895) 110 Cal. 23, 42 Pac. 470. But a logging rail- road is not expected or required to be laid with the same care and security as is demanded in the construction of rail- way tracks in use by common carriers. Lynn v. Anirim Lumber Go. (1901) 106 La. 451, 29 So. 874. See general prin- ciple explained in § 26, ante. 'St. Louis & 8. F. R. Go. v. Weaver (1886) 35 Kan. 412, 57 Am. Rep. 176, 11 Pac. 408. ^ Patton V. Central Iowa R. Co. (1887) 73 Iowa, 306, 35 N. W. 149 (curve prevented engineer from seeing cattle on the track until the train was so close to them that it could not be stopped in time to avoid the obstruc- tion ) . A company cannot be found negligent for the reason that it locates a siding on a curve and a grade (Inter- national & G. N. R. Co. Y. Johnson [1900] 23 Tex. Civ. App. 160, 55 S. W. 772), nor for the reason that on a very heavy grade it does not connect the lower end of the siding with the main track, thus rendering it necessary, ■whenever the cars are to be taken down the grade, either to propel them out of the siding by a push pole, or to run them down in front of the engine {Watts v. 3art [1893] 7 Wash. 178, 34 Pac. 423, 771). In Tivitchell v. Grand Trunh R. Co. (1889) 39 Fed. 419, it was held error to submit to the jury the question whether a siding is prop- erly constructed. For other cases to the same effect, see next section, subd. a. - 8i. Louis Bridge Go. v. Fellows (1893) 52 111. App. 504. ^ As, where it was at the foot of a very steep grade, and no guard rail was provided to prevent derailment {Pat- ton V. Southern R. Go. [1897] 27 C. C. A. 287, 42 U. S. App. 567, 82 Fed. 979) ; or where a gradient which cannot be ascended without accelerating the speed of the trains before it is reached fol- lows a double curve so sharp that the speed so required to take the train up the gradient is apt to cause a derail- ment {Galveston, H. £ S. A. R. Go. v. Ford [1898; Tex. Civ. App.] 46 S. W. 77). This case is strangely Inconsist- ent with the decision of the same court cited in note 1, supra. * As, where the evidence is that a. i?2 Master ANb servant. tonAP. tttt b. Bridges. — Negligence is predicable of the construction of bridges which are of insufficient strength to withstand the floods in the watercourses which they span,^ or are not strong enough to sup- port the rolling stock.® See also subd. d, infra. c. Channels for the discharge of surplus water. — It is negligence to build a track without providing channels of sufficient size to pre- vent the 'accumulation of water at places where it will endanger the security of tlie roadbed.'^ railroad company unnecessarily placed through a prairie country, for the rea- a switch just beyond a, water tank, so son that there is greater liability to ob- that the danger signal thereon could structions being thrown upon the track not be seen till a train was within 60 in the one case than in the other; and feet of it, leaving insufficient time to it is unquestionably true that one who stop the train. Young v. Syracuse, B. engages as an engineer or other train defendant's negligence in not ballasting the track, and the evidence was that the injury was due to the plaintiff's putting his arra between the deadwoods, where it would be caught when the cars met. ''Illinois C. R. Co. v. Sanders (1897) 166 111. 270, 46 N. E. 799; Preston v. Central R. & Bkg. R. Co. (1890) 84 Ga. 588, 11 S. E. 143 (here the ties were, also, too close together ) . » Si. Louis, I. M. & 8. R. Go. v. Rol- lins (1893) 57 Ark. 377, 21 S. W. 886 (here it appeared that the track was more dangerous than usual at the place of the accident, and that defendant had filled the spaces in some of its yards, but there do not seem to be differenti- ating facts) ; San Antonio & A. P. R. Co. V. Brooking (1899; Tex. Civ. App.) 51 S. W. 537. In Little Bock & M. R. Co. V. Moseley (1893) 6 C. C. A. 225, 12 U. S. App. 514, 56 Fed. 1009, it seems to be assumed that it was negligent to leave a space at the end of the ties un- filled. The question discussed was whether the plaintiff had notice of the conditions. In Illinois C. R. Go. v. Cosily (1898) 174 111. 109, 50 N. E. 1011, it was laid down in general terms that a railway company is bound to see that its tracks, within switch yards and other places where switching is to be done, are ballasted up to a level with the bottom of the rails; though the spe- cific ruling was merely that negligence might be inferred from evidence that the spaces between ties near a switch were not filled for a distance of 10 or 12 feet, where there was no necessity for leaving them unfilled. In Lake Erie & W. R. Co. V. Morrissey (1898) 177 111. 376, 52 N. E. 299, it was also declared § G9] DECISIONS AS TO VARIOUS APPLIANCES. 177 Injuries due to dangerous conditions, other tlian those created by want of ballasting, have sometimes been denied to be actionable, but not on the general ground assigned by the Pennsylvania court.'^ On the other hand, there are numerous other decisions which are di- rectly and unequivocally inconsistent with the broad theory of that court, that the track need not be made safe as a footway.-^" to be negligent to leave a side track 264, Distinguishing Plank v. New York without ballast. In both the cases last G. & H. R. R. Go. (1873) 1 Thomp. & C. cited the contention that it was a com- 319, Affirmed (1875) 60 N. Y. 607 mon practice to omit the ballasting was (infra, note 10), on the ground that in rejected. Since, however, tbe want of the earlier case the servant had no ballasting creates an obvious risk, no knowledge of the conditions. In one less than the want of blocking in a frog, case the risk of falling into a properly the Illinoirf court seems to be somewhat located cattle guard has been held to inconsistent in allowing a servant to be an ordinary one. Henderson v. recover for injuries caused by the for- Coons (1889) 31 111. App. 75. raer condition, and not for injuries " Negligence has been held to be im- caused by the latter. (See next subd. putable to the defendant under the fol- note 18.) The Illinois cases cited post lowing circumstances: Where ties are seem also to conflict with Pennsylvania left projecting a foot further outside Go. V. Eankey (1879) 93 111. 580. Al- the rail than the regulation distance, though the actual ruling there was the consequence being that an employee merely as to the admissibility of evi- is injured in alighting from a train, dence of a. usage not to ballast side Whitclier v. Boston t& il. R. Co. (1899) tracks, the reasoning of the court cei- 70 N. H. 242, 46 Atl. 740 (here long tainly justifies the inference that the switch ties bad been allowed to remain want of ballasting was not regarded as after switch rails had been removed), negligence. And such seems to be the Where the space between a crossing construction put upon the case in Fin- plank and the rail next it is of such a nell V. Delav.are, L. & W. R. Go. (1892) width that brakemen and others are in 129 N. Y. 669, 29 N. E. 825. Strange danger of having their feet caught in it. to say, it is not referred to, either in Jjouisville & N. R. Go. v. Johnson the two later decisions of the supreme (1897) 27 C. C. A. 367, 53 U. S. App. court 01- in the decision of the appellate 381, 81 Fed. 679; St. Louis & 8. F. R. court cited in note 6, supra. In one Go. y. Keller {IQOO; Kan. App.) 62 Pap. case the cc.mpany was held liable for 905. Where a signal wire in a yard is injuries caused by an unballasted side not covered. Indiana, I. d I. R. Go. v. track on a part of a road which had Buncly (1899) 152 Ind. 590, 53 N. E. been completed, although, up to that 175 (nonconformity with usage), time, it had been used only for construe- Where a switch rod is not close enough tion 'purposes. Gtilf, G. & 8. F. R. Go. to the ground to enable employees hav- V. Redeker (1886) 67 Tex. 181, 2 S. W. ing occasion to pa.ss over it, to do so 513. safely, in the exercise of reasonable ° In one case the court was of the care. Hannah v. Connecticut River R. opinion that train hands should be able Co. (1891) 154 Mass. 529, 28 N. E. 682 to a\'oid open water ways. Couch v. (arrangement denied to be necessary, Charlotte, C. & A. R. Co. (1884) 22 S. C. ^s matter of law). Where ditches, cul- 557. See § 30a, note 6, ante. In another, ^g^^.^^ ^^^^^^lg guards, etc., in a yard, or it was denied to be negligent to leave a ^^. ^^^^ point on the roadbed where em- space between the planking on a cross- pj^yggs are apt to go in switching and ing, inasmuch as the conditions thus go^pu^g cars, are left uncovered, and created were visible. G'^«ff" ,^- J^f^" employee falls into them. Plank y. York & N. E.R. Go. (1893) 159 Mass. ^ ^ ^^g^g, ^ 68, 34 N E 79. For the same reason ^^«^J (1875) 60 recovery has been denied where a serv- ^ ° ^ ^^^„,,.^'.„ ^ ^-^J^ ^ J,_ p ant, while coupling cars, was injured ^>- > t>,rr.iiD-h stpDoinff into one of several R- ^jO. (I»b/) 61 lumn. 4UJ, ai i\. v\ . Set by wS a vard was drained. 898; West v, Southern P. Co. (1898) DeForely. .Jc^cett' (\^m 88 N. Y. 29 C. C. A. 219, 56 U. S. App. 323. 85 Vol. I, M- & S.— 13. 178 MASTER AND SERVANT. [chap. vin. It would doubtless be held everywhere that negligence may be in- ferred from the existence of an isolated hole between the ties, even in a side track. This would clearly constitute a pitfall, and let in the operation of the paramount principle discussed in §§ 58, 59, ante}'^ c. Frogs and guard rails. — The position taken in some jurisdic- tions seems to be that a jury may properly infer negligence from the mere fact that a frog or a guard rail was not blocked. ^^ The obvious Fed. 392; Millen v. Tfew YorJc C. & 3. Co. v. Tester (1894) 11 C. C. A. 332, R. R. Co. (1897) 20 App. Div. 92, 46 27 U. S. App. 316, 63 Fed. 527 (hole N. Y. Supp. 748 (ditch 8 to 10 inches covered by slush and snow, when plain- deep and 14 inches wide) ; Hollenieck tiff stepped into it) ; Missouri P. R. Co. V. Missouri P. R. Co. (1897) 141 Mo. v. Jones (1889) 75 Tex. 151, 12 S. W. 97, 38 S. W. 723, Affirmed in banc in 972 (deep holes, made by throwing out 141 Mo. 113, 41 S. W. 887 (ditch from dirt between ties). Compare facts in 4 to 6 inches deep); Hennesey v. Chi- Illinois C. R. Co. v. Cozby (1898) 174 cago & N. W. R. Co. (1898) 99 Wis. 111. 109, 50 N. E. 1011. 109, 74 N. W. 554 (open ditch 10 inches "Sherman v. Chicago, M. & St. P. R. wide and 8 deep); Dcwidson v. South- Co. (1885) 34 Minn. 259, 25 N. W. em P. R. Co. (1890) 44 Fed. 476 (ditch 593; Trott v. Chicago, R. I. d P. R. Co. extending across the track) ; Peoria, D. (1901; Iowa) 86 N. W. 33; Mayes v. £ E. R. Co. V. PucJcett (1892) 42 111. Chicago, R. I. & P. R. Co. (1884) 63 App. 642 (here the fact that the posi- Iowa, 562, 14 N. W. 340, 19 N. W. 680; tion of a cattle guard was unnecessary Hamilton v. Rich Hill Goal Min. Co. •wa.3 emphasized) ; Fredeniurg V. North- (1891) 108 Mo. 364, 18 S. W. 977; em C. R. Co. (1889) 114 N. Y. 582, 21 Missouri P. R. Co. v. Baxter (1894) 42 N. E. 1049 (here an open cattle guard Neb. 793, 60 N. W. 1044; O'Neill v. was treated as a trap ) ; Galveston, H. Chicago, R. I. & P. R. Go. ( 1901 ; Neb. ) i« 8. A. R. Go. V. Slinkard (1897) 17 86 N. W. 1098; Holum v. Chicago, M. Tex. Civ. App. 585, 44 S. W. 35 (non- £ St. P. R. Go. (1891) 80 Wis. 299, 50 conformity with usage to cover cattle N. W. 99. A case which tends to sup- guards within yard limits). A cattle port the same view is Union P. R. Co. guard erected in accordance with a stat- v. James (1896) 163 U. S. 485, 41 L. ute must be one which will not endan- ed. 236, 16 Sup. Ct. Rep. 1109, but ger employees engaged in coupling cars, the actual rulings were on points of Ford v. Chicago, R. I. & P. R. Co. procedure. And the case of Southern (1894) 91 Iowa, 179, 24 L. R. A. 657, P. Co. v. Seley (1894) 152 U. S. 145, 38 59 N. W. 5, second appeal (1898) 106 L. ed. 391, 14 Sup. Ct. Rep. 530, note Iowa, 85, 75 N. W. 650, Reversing on 17, infra, seems to commit the supreme rehearing (1897) 71 N. W. 332 (cattle court to the theory that evidence merely guard, at a place where oars had fre- of the want of blocking is not enougifi quently to be coupled, held not to be to establish culpability. In Interna- properly constructed, where it was built tional & Q. N. R. Go. v. Bell (1889) 75 of ties laid across the track over a Tejc. 50, 12 S. W. 321, the court reversed trench 3 feet deep). a judgment for a brakeman, based on a In an action for injuries, caused by finding that the company was negligent stumbling over a ground switch, it is as regards the manner in which the error to instruct a jury that it is the guard rail was laid with respect to the legal duty of a railway company to fur- track rail, but the reversal was merely nish a suitably lighted yard. It is for on the ground that the instructions had the jury to say whether it was neces- imposed too high a degree of diligence sary, under the circumstances, to have on the company, and it is not apparent the yard lighted, in order that it might from the report what precise precau- be reasonably safe. Galveston, H. & 8. tions it was contended that the company A. R. Co. V. English (1900; Tex. Civ. should have adopted. In a case where App. ) 59 S. W. 626. the unblocked frog was a part of a turn- ■^ So conceded in Ragon v. Toledo, A. out laid down for a temporary purpose A. & N. M. R. Co. (1893) 97 Mich. 265, near a switching yard, it was held that 56 N, W, 612. See also Northern P. R. evidence of a general order issued by 69] DECISIONS AS TO VARIOUS APPLIANCES. 179 complement of the doctrine is that a court cannot say, as a matter of law, that culpability is imputable where nothing more appears than that there was a want of blocking.^^ Another view is that the servant, in order to make good his right to recover, must do more than merely establish the want of blocking. That is to say, he has the burden of proving that frogs, etc., are not reasonably safe for the purposes which they are designed to sub- serve,^* and must also show that, on the whole, the use of the block would be prudent, in that it would guard against dangers in one di- rection, without the introduction of new perils in another. ^^ See § 38, anie. He cannot recover merely upon evidence that an increase of safety is obtained by using blocks.^^ See § 35, ante. In many of the cases the ciroiunstance with reference to which the question of reasonable safety has been considered has been the common usage of railway companies. In order to estimate the doctrinal sig- nificance of these decisions, the theory held by the courts which ren- the defendant to block all frogs was competent, but not conclusive, evidence of negligence in leaving the frog in question without any blocking. Coates v. Burlington, G. R. & N. R. Go. (1883) 62 Iowa, 486, 17 N. W. 760. The fol- lowing vigorous argument by Lewis, J., in his dissenting opinion in Richmond & D. R. Co. V. Risdon (1891) 87 Va. 335, 12 S. E. 786, is worth quoting: "That the frogs were dangerous is not disputed. But it is contended that they were of the standard pattern, and that that fact of itself repels the imputation of negligence. From this view I dis- sent. If a standard frog, unguarded, and situated, as this one was, in a place where there are many tracks, and where cars are shifted at all hours of the day and night, is not reasonably safe, then the company, in allowing it to remain unguarded, was guilty of negligence, and the jury rightly so found. Nor, upon this point, are we left to infer- ence. The expert evidence for the plain- tiff is conclusive that the dangerous condition of the frogs could easily have been guarded against by the device of 'filling' them with cinders, which simple and inexpensive method renders them safe to those whose duties call them upon the track, and at the same time does not interfere with their ordinary use. The witness Perry, who for a number of years was in the employ of the defendant company as roadmaster, testifies that at terminal points, or in yards where much shifting is done, the frogs ought always to be filled, as a protection to switchmen; and this is so well understood, he says, that the laws of some states expressly require it to be done. And why should they not be filled? Why should the servant be ex- posed to unnecessary risks that can so easily be guarded against? Is the rule that the master must exercise reason- able or ordinary care a meaningless phrase, — a mere jingle of words? I think not." ^^ Missouri P. R. Go. v. Lewis (1888) 24 Neb. 848, 2 L. R. A. 67, 40 N. W. 401. " Spencer v. 'New York G. & B. R. R. Go. (1893) 67 Hun, 196, 22 N. Y. Supp. lOO; Chicago, R. I. & P. R. Co. v. Lon- ergan (1886) 118 111. 41, 7 N. E. 55. '° McQinnis v. Canada Southern Bridge Go. (1882) 49 Mich. 466, 13 N. W. 819. '= Chicago, R. I. & P. R. Co. v. Loner- gan ilSS6) 118 111. 41, 7 N. E. 55; Huhn V. Missouri P. R. Go. (1887) 92 Mo. 440, 4 S. W. 937; Chicago, B. & Q. R. Co. V. Smith (1885) 18 111. App. R9; Lake Shore & M. S. R. Co. v. Mn- Cormick (1881) 74 Ind. 440 (want of blocking here declared to be an ordi- nary risk). It is not negligence to use a, piece of wood 1 inch thicker, 6 inches wider, and 1 foot longer than the pieces customarily used for the purpose of blocking guard rails. Morris v. Duluth, S. S. & 4. R. Co. (1901) 47 C. G. A. 661, 108 Fed. 747. 180 MASTER AND SERVANT. [chap. vin. dered them must be taken into account. In some jurisdictions, as shown in chapter vi.^ ante, proof that it is the common usage of rail- way companies not to block frogs or guard rails will prevent recov- ery, as matter of law.^^ In otliers, such evidence is merely treated as an element, proper for the consideration of the jury.-'^ "A special finding that the frogs of establish its utility, and establish negli- the defendant company were the same gence in every other road that adheres as those; used by the principal roads in to the old system. The old system of the country was one of those upon constructing switches must be con- which the plaintiff's right to recover demned." It was accordingly held er- was denied in Lake Shore & M. 8. R. ror to instruct the jury that the law Co. V. McConnick (1881) 74 Ind. 440. requires a railroad company to use rea- To the same effect, see Richmond & D. sonable and ordinary care and diligence R. Co. V. Risdon (1891) 87 Va. 335, 12 in providing and maintaining reason- S. E. 780, declaring that to maintain ably safe structures, tracks, side tracks, unblocked frogs of a standard pattern switches, turn-outs, etc., and if it fails is not negligence; and Smith v. St. to do so, and an injury happens in con- Louis, K. G. & N. R. Co. (1878) 09 Mo. sequence thereof to an employee in the 32, 33 Am. Rep. 484, holding a railroad exercise of due and reasonable care, company not liable for injuries caused then the railroad company would be lia- by a guard rail of a pattern in general ble. The specific negligence charged in use, though a safe one might have been the declaration being the omission to constructed. (But see the Missouri use blocking, such an instruction would case cited in the next note.) A court be understood by the jury as laying will not pronounce a railway company down the rule that the company was negligent, where no proof is given that absolutely required to use blocks, blocked frogs are a device in general use (Mulkey, Ch. J., and Shope and Ma- on other roads (Spencer v. lieio York gruder, JJ., dissent.) In Southern P. G. & H. R. R. Go. [1893] 07 Hun, 190, Go. v. Seley (1894) 152 U. S. 145, 38 22 N. Y. Supp. 100; Banks v. Georgia L. ed. 391, 14 Sup. Ct. Rep. 530, it was R. & Bkft. Co. [1901] 112 Ga. 055, 37 held error to refuse the following in- S. E. 992); nor where the evidence is struetion: "The jury are instructed that some railway companies adopt and that, if they find from the evidence that some reject that precaution (McNeil v. the railroad companies used both the Neto York, L. E. & W. R. Co. [1893] blocked and the unblocked frog, and 71 Hun, 24, 24 N. Y. Supp. 610) ; nor that it is questionable which is the where the larger number of witnesses safest or most suitable for the business testify that this arrangement is as safe of the roads, then the use of the Un- as blocking (Kilpatrick v. Ghoctaiv R. blocked frog is not negligence, and the Go. [1901; Ind. Terr.] 04 S. W. 560); jury are instructed not to impute the nor where the utmost that is established same as negligence to the defendant, by the plaintiff's evidence is that the and they should find for the defendant." device of blocking is still an experiment. The decision of the territorial court in and of doubtful practicability (Ghicaqo, this case is reported in (1890) Utah, B. & Q. R. Go. V. Smith [1885] 18 111. 319, 23 Pae. 751, where it was held neg- App. 119; Chicngo. R. I. & P. R. Co. ligence not to have blocking. BourgeavJ.t V. Lonergan [ISSOj' 118 111. 41, 7 N. E. v. Grand Trunk R. Go. (1891) Mont. L. 55 ) . In the latter case the court said : R. 5 Super. Ct. 249, possibly depends on "It must appear, before the defendant the same considerations as the above- can be held liable, that the switch or cited cases, but its rationale is not ap- turn-out, as constructed and used, was parent from the very brief judgment, not reasonably safe, or that it was not " In Euhn v. Missouri P. R. Co. constructed with the usual care and (1887) 92 Mo. 440, 4 S. W. 937, it was skill. An employer is not required to held that the question whether the change his machinery in order to ajiuly company was negligent in maintaining or adopt every new invention. The a gviard rail without blocking could not fact that a few of the railroads of be resolved merely by showing how the country have adopted this nevf de- many roads used blocks. It was held vice, or that the defendant has used it in Austin v. Chicago, R. I. & P. R. Go. on a part of its road, is not enough to (1895) 93 Iowa, 236, 61 N. W. 849, i CO] DECISIONS AS TO VARIOUS APPLIANCES. 181 A conception sometimes relied upon has been tliat the risk created by the unblocked frog was obvious, and therefore assumed. lu one case, this seems to stand as the specific and differentiating reason upon which recovery was denied.^* But most of the decisions in which phraseology indicative of the conception is employed emanate from courts of which at least a part would deny the master's liability, even apart from this consideration.^" In the case of an inexperienced minor, it is the duty of a railway company to warn him as to the risks incident to unblocked frogs. ^^ Where a railway company has been in the habit of blocking its guard rails at some particular place, there is a special ground for charging it with negligence in failing to replace the blocking, when forced out by accident ; but, even conceding there is a duty, under such circumstances, to see that the blocking is restored, it is plain that, upon general principles, the servant cannot recover for an injury caused by the want of the blocking, in the absence of evidence showing that it had been displaced so long that the company might, by the ex- ercise of reasonable care, have discovered its absence.^^ Negligence cannot be inferred merely from the fact that the track would have been safer if a different kind of rail had been used for a guard rail.^^ d. Side tracks and yards. — (See also subd. h, infra.) — As sidings with their appurtenances of switches, turntables, etc., are essential to the operation of the main line of a railroad company, the duty of the master in regard to their construction and maintenance is the same as that which is incumbent on him with respect to the main line itself.^* that an instruction was correct, which 392, .51 N. B. 920 (unblocked frog) ; declared that a brakeman, who was in- Burnham v. Concord & M. R. Co. (1896) jured through catching his foot in a 68 N. H. 567, 44 Atl. 750; Narramore space left unfilled between the ties on v. Cleveland, C. C. & St. L. R. Co. each side of the bars of a, switch, was (1899) 48 L. R. A. 68, 37 C. C. A. 499, not precluded from recovering by proof 96 Fed. 298. that this arrangement was customary. " Davis v. St. Louis, I. M. & 8. R. Co. ^'Rush V. Missouri P. R. Co. (1887) (1890) 53 Arlc. 117, 7 L. R. A. 283, 13 36 Kan 129, 12 Pac. 582. S. W. 80; S. C. (1892) 55 Ark. 462, 18 ^Southern P. Go. v. Seley (1894) S. W. 628 (action by father of serv- 152 U. S. 145, 38 L. ed. 391, 14 Sup. Ct. ant). Ren 530 • Avvel v. Buffalo, N. Y. & P. ~ Hashms v. New York C. & H. R. R. R Co (l888) 111 N. Y. 550, 19 N. E. Co. (1894) 79 Hun, 159, 29 N. Y. Supp. 93- Illinois C. R. Co. v. Campbell 274. See chapter, x., post. n8971 170 111 163, 49 N. E. 314; -^ Smith v. St. Louis, K. G. & N. R. Ames V Lahe Shore & M. 8. R. Co. Go. (1878) 69 Mo. 32, 33 Am. Rep. 484. (1893) 135 Ind. 363, 35 N. E. 117; '^ Elmer v. Locke (1883) 135 Mass. Sheets v Chicago & I. Coal R. Co. 575, where a brakeman was held en- (1894) 139 Ind. 682, 39 N. E. 154; Mc- titled to maintain an action for injuries Ginnis v Canada Southern Bridge Go. occasioned by the fall of a trestlework, (1882) 49 Mich. 466, 13 N. W. 819; supporting a portion of a spur track, ■^dbash R Co. v. Ray (1898) 152 Ind. which was intended for use for an in- 182 MASTEIIAJSTD SERVAOT. [citAP. Vtlt. 70. Objects alongside and dangerously near the track. — (See also § 86, post.) — a. Conditions held to import negligence. — One line of decisions proceeds upon the theory that a jury is wari'anted in find- ing a railway company to be guilty of negligence in maintaining struc- tures or other fixed objects so near its track that employees are in dan- ger of being struck by them, while performing duties which require them to place their persons outside of locomotives or cars.-' The posi- definite period of time. The court here distinguished the degrees of care re- quired in the case of permanent and temporary structures. Where new en- gines are put into use, so much larger than those for which a turntable was originally constructed that, when they are being turned, they are liable to be struck by engines passing on aji adja- cent track, it is the duty of the company to make such corresponding changes in the track and turntable as will render the handling of the larger engines rea- sonably safe. Lake Shore & M. 8. R. Go. V. Fitzpatrick (1877) 31 Ohio St. 479. The want of an ash pit on a short branch line does not import negligence. Seldomridge v. Chesapeake & 0. R. Go. (1899) 46 W. Va. 569, 33 S. E. 293. It is negligence not to provide a pit, over which to place engines while they are being cleaned. South Florida R. Go. V. Weese (1893) 32 Fla. 212, 13 So. 436. It is for the jury to say whether it was negligence to construct a split switch with the rails about 3% inches apart, so that they were likely to catch a brakeman's foot, the evidence being that they could have been set within 2J inches of each other. Brooke v. Chi- cago, R. I. & P. R. Co. (1890) 81 Iowa, 504, 47 N. W. 74. On the other hand, it is not negligent to maintain a ground switch of the or- dinary pattern, and so constructed that it may be worked, without danger from passing trains, by a servant standing midway between the rail which it shifts and the adjacent track. Randall v. Baltimore R. Go. (1883) 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322. Nor is it negligent to change a patent switch to a common switch at a place where the condition of the grades, etc., affords good reasons for believing the latter kind to be the safer. Piper v. New York G. & U. R. R. Go. (1874) 56 N. Y. 630. Where there is no uniform rule on the subject, the location of a switch stand on the same side of the main track as the siding into which the trains are switched is not negligence. Orattis v. Kansas Gity, P. & G. K. Go. (1900) 153 Mo. 381, 48 L. R. A. 399, 55 S. W. 108. The want of a light on a switch has been denied to be negligence as to a switchman who has occasion to cross a track in a yard, the ground re- lied upon being the absence of any evi- dence of a general usage requiring such a safeguard. Grant v. Union P. R. Co. (1891) 45 Fed. 217. Contrast Illinois ease cited in § 68 (d), ante. ^ Bryce v. Chicago, M. <& St. P. R. Go. (1897) 103 Iowa, 665, 72 N. W. 780 (bolt in bridge truss caught brake- man's clothing, while he was proceed- ing, in compliance with the company's rules, to release the brakes ) ; Texas M. R. Co. V. Taylor (1898; Tex. Civ. App.) 44 S. W. 892 (1899) 53 S. W. 362 (fireman struck by side of bridge) ; Rolel V. Chicago, M. & St. P. R. Go. (1886) 35 Minn. 84, 27 N. W. 305 (trestle of side track 14 inches from cars) ; Fort Worth & D. C. R. Co. v. Graves (1893; Tex. Civ. App.) 21 S. W. 606) (brakeman knocked from the train by one of the stays of a bridge while he was climbing a ladder on the side of a box car, on a dark, cold morn- ing, in response to the usual signal, and in the prudent discharge of his duty, as the train was passing over the bridge, the accident being due to the fact that the track was negligently placed nearer to that side of the bridge than to the other) ; Pidcook v. Union P. R. Co. (1888) 5 Utah, 612, 1 L. R. A. 131, 19 Pac. 191 (switch stand within 10 inches of passing cars) ; Southern Kansas R. Go. v. Michaels (1896) 57 Kan. 474, 46 Pac. 938 (ar- row of switch stand, when turned, was 9 inches from cars) ; Bonner v. La None (1891) 80 Tex. 117, 15 S. W. 803 (same facts) ; Boss v. Northern P. R. Co. (1891) 2 N. D. 128, 49 N. W. 655 (tar- get so close as sometimes to come into contact with passing trains) ; Golf v. Chicago, St. P. M. d 0. R. Go. (1894) 87 Wis. 273, 58 N. W. 408 (switc^ § 70] DECISIONS AS TO VAiilOtfS APPLIANCES. 183 tion taken is that railway companies have no right to place structures, for any purpose, so near the track that the slightest indiscretion on the part of the employee will prove fatal.^ From this point of view stand 7i inches from cars; considerably New York rule) ; Whipple v. New closer than other stands in the same York, N. H. & B. B. Co. (1896) 19 K. yard) ; Pennsylvania Go. v. Finney I. 587, 35 Atl. 305 (telegraph pole) ; (1896) 145 Ind. 551, 42 N. E. 816 Crandall v. New York, N. 3. & B. B. (water plug); Ohioago & A. R. Go. v. Co. (1896) 19 E. I. 594, 35 Atl. 307 Stevens (1901) 189 111. 226, 59 N. E. (telegraph pole near side track); Ghi- 577, Afarming (1900) 91 111. App. 171, cago & I. R. Co. v. Bussell (1878) 91 Affirmed (1901) 189 111. 226, 59 N. E. 111. 298, 33 Am. Rep. 54 (telegraph pole 577 (footboard outside coal shed) ; Chi- within 18 inches of cars) ; Belfrich v. cago, R. I. & P. R. Go. v. Clark (1883) Ogden City B. Go. (1891) 7 Utah, 186, 108 111. 113 (platfoma 10 inches from 26 Pao. 295 (telegraph pole 12 to 18 outside of cars; actual ruling was that inches from track) ; East Tennessee, V. an instruction was erroneous which de- & O. B. Co. v. Bead (1893) 92 Ga. 723, Glared that the company was liable if 18 S. E. 976 (danger signal post) ; Cen- the platform was dangerous, thus ig- tral Trust Co. v. East Tennessee, V. & noring the question whether it was O. B. Go. (1895) 73 Fed. 661 (station known to be dangerous) ; Perigo v. Chi- limit board) ; Illinois C. B. Co. v. cago, B. I. & P. B. Co. (1879) 52 Iowa, Welch (1869) 52 111. 183, 4 Am. Rep. 276, 3 N. W. 43 (platform dangerously 593 (projecting awning, outer edge of close) ; Kelleher v. Milwaukee & N. B. which was almost directly above the Co. (1891) 80 Wis. 584, 50 N. W. 942 sides of the cars) ; Salem Stone & Lime (coal shed near side track); Illinois & Co. v. Griifin (1894) 139 Ind. 141, 38 St. L. B. Co. V. Whalen (1886) 19 111. N. E. 411 (structure close to tram App. 116 {shed) ; Chicago, R. I. <& P. R. car line); Woodell v. West Vir- Co. V. Cleveland (1900) 92 111. App. 308 ginia Improv. Co. (1893) 38 W. Va. 23, (flag shanty) ; Johnson v. St. Paul, M. 17 S. E. 386 (projecting bough of d M. R. Co. (1890) 43 Minn. 53, 44 N. tree) ; Stackman v. Chicago & N. W. R. W. 884 (signal post); Arabello v. San Co. (1891) 80 Wis. 428, 50 N. W. 404 Antonio & A. P. R. Co. (1889; Tex.) (bank injured a servant while pushing 11 S. W. 913 (stake) ; Neto York, C. & a, car along the track; fact that road St. L. B. Co. V. Ostman (1896) 146 Ind. was in course of construction held to be 452 45 N. E. 651, Reversing on rehear- immaterial here) ; Georgia P. R. Co. v. ing' (1895) 41 N. E. 1037 (cattle Davis (1891) 92 Ala. 300, 9 So. 252 ohute); Dorsey v. Phillips & 0. Gonstr. (large rock). In Walker v. Reding- Co. (1877) 42 Wis. 583 (cattle chute); ton Lumber Co. (1893) 86 Me. 191, 29 Alien V. Burlington, G. R. & N. R. Co. Atl. 979, a skidway 2i feet from side of (1882) 57 Iowa, 623, 11 N. W. 614 car was apparently regarded by bench (1884) 64 Iowa, 94, 19 N. W. 807 (cat- and bar as a negligent arrangement; tie chute ) ; Keist v. Chicago, G. W. but the servant's action failed because B. Go. (1899) 110 Iowa, 32, 81 N. W. he was struck by it when needlessly 181 (cattle chute) ; Phelps v. Chicago hanging down below the car to see £ W M B. Co. (1899) 122 Mich. 171, whether the wheels were sliding after 81 N. W. 101 (1900) 121 Mich. 178, 84 he had set the brakes. Where the evi- N. W. 66 (fish chute; see, as to this dence shows that it is the general cus- case § 58 note 5, ad finem) ; Murphy tom of brakemen to pass up and down V Wabash B. Co. (1893) 115 Mo. Ill, the sides of cars in motion, and jump 21 S W. 862 (cattle guard fence 18 off to open or close switches, a railway inches from locomotive) ; Bouston & T. company is bound to locate its struc- B Co V Oram (1878) 49 Tex. 341 tures along the track with reference to (water tank closer than usual) ; Ball this custom, at all places where it may V Union P. B. Go. (1883) 5 McCrary, reasonably anticipate that brakemen 257 16 Fed. 744 (telegraph pole 12 will have occasion to alight for this inches from locomotive ) ; Benthin v. purpose. Flanders v. Chicago, St. P. Tew York C. & B. B. B. Go. (1897) 24 M. & 0. B. Go. (1892) 51 Minn. 193 53 At)D Div 303, 48 N. Y. Supp. 503 (tel- N. W. 544 (eaves of section house), eeraph pole 4 inches from passing loco- ' Chicago, B. & Q. B. Co. v. Qregory motive But see note 5, infra, as to (1871) 58 111. 272 (mail catcher). In 184 MASTER AND SERVANT. [chap. vrtt. the test of the company's negligence will be, whether the structure or other object which caused the injury was dangerous or unsafe to per- sons operating its trains, when they were exercising what was, under the circumstances, ordinary care.^ The servant's excusable ignorance of the conditions and the result- ing risks is adverted to in many of the cases in which the company has been held liable ; * but, so far as regards the courts with which we have to deal in this subdivision, this element is merely corroborative in its significance, instead of being differentiating, as is the case in the ju- risdictions dealt with in the next subdivision. Two cases in which the action was held not to be maintainable, the only ground assigned for the decision being that the risk was pat- ent, and therefore assumed, are somewhat difficult to classify.^ Ob- viously, such a reason is consistent either with the hypothesis that the court was applying the theory exemplified in the next subdivision, or with the hypothesis that it was intended to assert the doctrine that, al- though there was a breach of duty, the risk arising therefrom had been undertaken by the servant. In view of the other Texas decisions al- WUpple V. New York, S. H. & H. B. Co. (1896) 19 R. I. 587, 35 Atl. 305, the court expressly rejected the doctrine referred to in the next subdivision, via., that, as the danger of contact with structures of this kind is a matter of common knowledge, and as they are ob- jects plainly visible, their presence is at once suggestive of danger; and that the risk of being hit by them is, there- fore, an obvious danger, and one as- sumed by the plaintiff when he entered into the service. = New York, C. & St. L. R. Go. v. Ost- man (1896) 146 Ind. 452, 45 N. E. 651. In Pennsylvania Co. v. Finney (1896) 145 Ind. 551, 42 N. E. 816, a servant injured by a water plug was not al- lowed to recover, for the reason that there was no evidence to show that he had been careful. But the result would doubtless have been different in a state where the burden of proving contribu- tory negligence lies on the defendant. The instructions to the jury, in a case of this kind, should express the notion that the defendant was negligent if the structure in question was dangerous to a person exercising ordinary care. Qould V. Chicago. B. & Q. R. Co. (1885) 66 Iowa, 590, 24 N. W. 227 (disapprov- ing of an unqualified instruction to the effect that, if the jury found that the water column which caused the injury was placed in such close proximity to the track as to be dangerous to the per- sons operating the trains, they would be justified in finding that defendants were guilty of negligence in its loca- tion). 'Bonner v. La None (1891) 80 Tex. 117, 15 S. W. 803; Boss v. Northern P. R. Co. (1891) 2 N. D. 128, 49 N. W. 655 (proximity of switch stand showed a breach of company's own rules) ; Chi- cago, R. I. . Joseph Furniture Mfg. Co. (1897) 70 Mo. App. 209. A duty to screen saws cannot be established by evidence that such screens were used on machines different from the one in ques- tion. Journeaucc v. E. H. Stafford Go. (1899) 122 Mich. 396, 81 N. W. 259. " It is for the jury to say whether a roaster is negligent in not guarding a revolving shaft over which, with the knowledge and acquiescence of his fore- man, the workman was in the habit of stooping to remove lumps of ore from a spout on the opposite aide, or in fail- ing to adopt another method of doing the work. Tobin v. New Glasgow Iron, Coal & It. Co. (1894) 26 N. S. 268. Negligence may be inferred where no guard is placed over cogwheels, across which a, servant is frequently obliged to lean in order to open a gate for the pas- sage of billets of iron, the amount of exertion required being variable, and often very considerable. Rummell v. Dilworth '(1885) 111 Pa. 343, 2 Atl. 355. An employer is negligent in fur- nishing for an employee a circular saw, for the purpose of sawing blocks 3i inches long, which is operated by plac- ing the wood on a slide and pushing the slide towards the saw, holding the wood in place with the hand, where the slide is unsupported for 18 inches next to the saw, and when if any pressure is placed on that end the slide is thrown off, and the operator's hand is likely to be in- jured. Stiller V. Bohn Mfg. Go. (1900) 80 Minn. 1, 82 N. W. 981. A rapidly revolving shaft in a. sawmill, below and only a few feet from a narrow elevated platform where an inexperienced boy is stationed with a hook or pike pole, charged with the duty of keeping chutes clear of clogged slabs by striking the hook into them and pulling them towards him, and liable to be precipi- tated upon the shaft if the hook or slabs are unexpectedly released, — is a danger- ous place, and ought to be covered. Kinq v. Ford River Lumber Co. (1892) 93 Mich. 172, 53 N. W. 10. The court said: "There is a difference between § 77] DECISIONS AS TO VARIOUS APPLIANCES. 209 77. Revolving shafts. — The doctrine adopted by some courts is tliat a master is, as matter of law, not guilty of negligence in maintaining a shaft with a projecting screw, this -doctrine being referred to the principle that it is a common contrivance.^ Or, as the rule may also be stated, to leave gearings, set screws, and other parts of machinery unboxed is not negligence, where other manufacturers in the same line of business operate their machinery in the same manner.^ It fol- lows, therefore, that, although there may be a safer kind of set screw working with or at a piece of machin- ery, and being engaged in other work in close proximity to such machinery. In the one case, attention is naturally di- rected to the machinery; and in the other, attention is directed to the work, and not to the machinery, and the more attention is given to the work, the less must necessarily be given to the ma- chinery. Take the present case. Slabs were clogged, and were collecting in this chute. The boy had not control of the work, but the work was driving him. To what would his attention be naturally directed, and what would nat- urally challenge his entire attention, if not the clogged chute ? If, from the na- ture of this boy's work, he was liable to be thrown against this shaft, sudden contact with which was dangerous, can there be any question but that the place was one of danger? There was testi- mony tending to show that shafting like this was not usually covered; but the necessity for covering any dangerous machinery arises from the probability of contact with it, from its proximity to persons engaged at work in its vicin- ity. This shafting was 8 feet and 5 inches from the mill floor. Independ- ent of the fact that this conductor and these chutes and this platform had been constructed there, and this boy placed at work beside this shaft, it would have been entirely unnecessary to cover or guard it. If this boy was likely to be thrown against this shaft, and, being thrown against it, would be likely to have his clothes caught, or to clutch it, is there any question but that it should have been guarded or covered so as to prevent just those consequences? Can it be said not to be dangerous, because he ought not to have, or might not have, clutched it, or his clothes might not have caught?" Tf the uncovered ma- chinery is so high above the level where the servants are that it will clear their persons under ordinary circumstances, the emplo3'er cannot be held liable, un- Vol, I. M. & S.— 14. less it is shown that it was dangerous in that position, or that it might rea- sonably have been anticipated that an emploj'ee might be injured thereby. Eckels V. Chicago Ship Building Co. (1896) 63 111. App. 436. See also the cases cited in note 1, supra, and com- pare note 5 to § 77, infra. ^ Hale V. Cheney (1893) 159 Mass. 268, 34 N. E. 255. (there plaintiff was only sixteen years of age, but no weight was attached to this fact) ; Goodnow v. Walpole Emery Mills (1888) 146 Mass. 261, 15 N. E. 576; Dillman v. Hamilton (1898) 14 Mont. Co. L. Rep. 92 (plain- tiff was twenty years old) ; Lewis v. Simpson (1892) 3 Wash. 641, 29 Pac. 207 ; Hoffman v. American Foundry Go. (1897) 18 Wash. 287, 51 Pac. 385; Kreider v. Wisconsin River Paper & Pulp Go. (1901) 110 Wis. 645, 86 N. W. 662. In Middaugh v. Mitchell (1899) 120 Mich. 581. 79 N. W. 806, and in Sa- kol V. Rickel (1897) 113 Mich. 476, 71 N. W. 833, the court did not expressly decide whether a set screw imported negligence, the case turning upon the contributory negligence of the plaintiff. But, in view of the general trend of the decisions in this state, it may reason- ably be inferred that the action would not have been sustained in any event. See decisions cited in the last section. ^Wahash Paper Co. v. Welh (1896) 146 Ind. 303, 45 N. E. 474; Keats v. 'National Heeling Mach. Co. (1895) 13 C. 0. A. 221, 21 U. S. App. 656, 65 Fed. 940 (but see chapter v., as to the doc- trine of the Federal courts as to effect of conformity to usage) ; Demers v, Marshall (1899) 172 Mass. 548, 52 N. E. 1006 (1901) 178 Mass. 9, 59 N. E. 454. Under this doctrine, an adult workman assumes the risk from a screw placed upon the shaft without his knowledge after the beginning of his employment, in the absence of any pre- tense that he remembered the previous condition of the shaft, and was acting in reliance upon his former observation 210 MASTER AND SERVANT. [chap. vnr. which is also in common use, the master owes the servant no duty to box the pulley or shaft, or to change the set screw for a safer one.^ In one case, where no projecting screw was involved, recovery was denied simply on the ground that tlie shaft was a permanent struc- ture, creating an obvious risk.* By other courts it is held that a jiiry may properly find a master liable for injuries caused by such a contrivance,® and that common usage is not a conclusive justification for adopting or retaining it.^ at the time of his injury. Ford v. Mt. Tom Sulphite Pulp Go. (1890) 172 Mass. 544, 48 L. R. A. 96, 52 N. E. 1065. ' Rooney v. Sen-all & D. Cordage Go. (1894) 161 Mass. 153, 159, 36 N. E. 789; Goodnow v. Walpole Emery Mills (1888) 146 Mass. 261, 15 N. E. 576. 'Lemoine v. Aldrioh (1900) 177 Mass. 89, 58 N. E. 178. " See cases cited in the next note. In Minnesota, the question as to a master's negligence was held to be for the jury, in an action for injuries to a, servant whose coat sleeve was caught by a set screw on a revolving shaft as he was at- tempting to place a belt upon a. pulley 2 inches therefrom, where it appears that the head of the screw was not pro- tected or guarded in any way, that it was a cube J inch square and projected at least f of an inch from the shaft, which was revolving about 150 times to the minute, and that it was frequently necessary to adjust the belt upon the pulley. Pruke v. South Park Foundry & Mach. Co. (1897) 68 Minn. 305, 71 N. W. 276. But, in another case, the same court took the rather refined dis- tinction that, even if the defendant was negligent in having a shaft with a set screw projecting so far as to be danger- ous to a servant whose work required him to be in close proximity to it, there could be no liability for an injury re- ceived by a, servant who was oiling the machinery at some distance away, where the chances of his falling against the shaft were so slight and remote that they could not reasonably have been an- ticipated. Graff V. Duluth Imperial Mill Go. (1894) 58 Minn. 333, 59 N. W. 1049. The present writer ventures to think that the reference to the test of reasonable anticipation is, under such circumstances, wholly unwarrantable. That the duty to provide a safe place of work inures in favor of all servants who are rightfully at the particular point where the dangerous conditions which are alleged to import culpability are found seems to be a necessary corol- lary from the principles which define the position of a person invited on premises, as contrasted with the posi- tion of one who is a mere licensee or trespasser. The only ground, it is sub- mitted, upon which a servant injured by uncovered machinery should be de- bari'ed from recovery is that his pres- ence at the spot where the accident oc- curred amounted to positive contribu- tory negligence; and this is the single case in which a master should be al- lowed to excuse himself by the plea of nonantieipation. In Galveston Oil Go. V. Thompson (1890) 76 Tex. 235, 13 S. W. 60, the court seems to have regarded a shaft with protruding screws as an appliance the maintenance of which im- ported negligence, but the specific ground of recovery was that the plain- tiff had been negligently ordered to per- form a. service not within the scope of his employment. Under the civil law, as administered in Quebec, a master who maintains a shaft with a danger- ous projection thereon is deemed guilty of a breach of duty. George Matthews Go. V. Bouchard (1897) Rap. Jud. Que- bec, 8 B. R. 550. See also Horton v. Vulcan Iron Works Co. (1897) 13 App. Div. 508, 43 N. Y. Supp. 699, where, however, the successful plaintifif was an independent contractor. " Homestake Min. Co. v. Fullerton (1895) 16 C. C. A. 545, 30 U. S. App. 32, 69 Fed. 923 (liability of the master held to be for the jury to decide, the ev- idence being that the servant's clothing was caught upon protruding bolts of a coupling of a rapidly revolving shaft, located in a narrow and dark tunnel, near a cross timber under which he was obliged to stoop or crawl while passing through the tunnel in the discharge of his duties) ; Geno v. Fall Mountain Paper Go. (1895) 68 Vt. 571, 35 Atl. 475 (instruction embodying opposite rule held erroneous). 78] DECISIONS AS TO VARIOUS APPLIANCES. 211 In some of the cases already cited, as well as in others in which the element of usage is not adverted to, the employer's liability is made to turn, wholly or partially, upon the fact of the servant's knowledge or ignorance of the conditions.'^ Under any theory of the master's obligations with regard to such machinery, he clearly cannot be held liable where the injury resulted from the fact that the servant was using it for purposes having no connection with his duties.* See § 26, ante. 78. Employer's liability for injuries caused by various other mechan- ical appliances. — In the subjoined note are collected a number of cases in which the liability of the master for injuries due to various kinds of mechanical appliances has been discussed and determined Avith ref- erence to the general question of reasonable safety, and to the effect of the specific principles reviewed in the preceding chapters.^ 'A complaint stating that plaintiff, while in the employ of defendant, re- ceived injuries through the failure of defendant to guard a dangerous set screw, the existence of which was un- known to plaintiff, is not demurrable. Robe V. Consolidated Ice Co. (1899) 91 Fed. 457. That a jury might find it negligent to require a servant to drive under a shaft which had been, without his knowledge, repaired with projecting bolts was held in Hawkins v. Johnson (1885) 105 Ind. 29, 55 Am. Rep. 169, 4 N. E. 172. Whether a master can be held liable for omitting to instruct a servant as to the position of a set screw depends upon whether the servant was inexperienced to such a degree that he could not reasonably be expected to un- derstand the danger arising from it, and the master knew or ought to have known of that inexperience. Ingerman V. Moore (1891) 90 Cal. 410, 27 Pac. 306; Keller v. GasUll (1894) 9 Ind. App. 670, 36 N. E. 303; second appeal (1898) 20 Ind. App. 502, 50 N. E. 363. A machinist and engineer is chargeable with knowledge that set screws are in constant use in machinery, and cannot hold a master liable for an omission to apprise him of the danger caused by one on a shaft which he is repairing. Good- now V. Walpole Emery Mills (1888) 146 Mass. 261, 15 N. E. 576; Keats v. National Heeling Mach. Co. (1895) 13 C. C. A. 221, 21 U. S. App. 656, 65 Fed. 940. See, generally, as to the master's duty to give instructions, chapter xvi., ^au-ffman v, Maier (1892) 94 Cal. 269, 18 L. R. A. 124, 29 Pac. 481 (no re- covery where a. servant was injured in trying to remove a towel from a shaft which began to revolve after he had, for his own convenience, hung the towel on it). ' (1) Appliances for raising heavy weights. — Negligence is inferable where a well-known device for preventing acci- dental changes in the gear of a crane was not adopted. Bonner v. Pittsburg Bridge Co. (1897) 183 Pa. 278, 38 Atl. 896. A jury may infer negligence from the want of a brake on a windlass. Gartter v. Cotter (1891) 88 Ga. 286, 14 S. E. 476. The mere fact that a der- rick which fell was not provided with guy ropes, and proved to be too light for the work which the servants tried to accomplish with it, does not import negligence. Rosa v. Volkening (1901) 64 App. Div. 426, 72 N. Y. Supp. 230. Negligence is inferable from the fact that a smaller hoolf than was custom- ary was used to support a heavy bucket. Gosselmon v. Dnnfee (1901) 59 App. Div. 467, 69 N. Y. Supp. 271. A court cannot say, as matter of law, that the use of ratchet jacks to hold up the body of a derailed car imports negligence. Louisville d W. R. Co. v. Jones (1901; Ala.) 30 So. 586. Negligence cannot be imputed from the fact that hand power was not used instead of a derrick, to draw up the shoring planks from a sewer. Joyce v. Worcester (1885) 140 Mass. 245, 4 N. E. 565. It is not neg- ligence to use a piece of bridge timber, as a lever to raise a broken turntable. Bohn V. Chicago, R. I, d p. ij. Cq. 212 MASTER AND SERVANT. [chap. VIII. (1891) 106 Mo. 429, 17 S. W. 580 (con- formity to usage proved). A pole is an adequate appliance for use as a lever in prizing up ties on a track. Young v. Virginia & N. G. Gonstr. Go. (1891) 109 N. C. 618, 14 S. E. 58. (2) Appliances involving the use of steam. — It is not negligence to use a boiler of a v^idely used type, though the addition of certain attachments vi^ould have made it safer. Service v. Shone- man (1900) 196 Pa. 63, 46 Atl. 292. The V7ant of a safety valve, to prevent an inrush of steam from a boiler into a "cooker," imports negligence. Empson Packing Go. v. Vaughn (1899) 27 Colo. 66, 59 Pac. 749. It is not negligent to US3 hot water instead of steam to heat a drier, where hot water is customarily employed for that purpose. Glover v. Meinrath (1896) 133 Mo. 292, 34 S. W. 72. The use of east-iron for a stop valve on a steamer is not negligent where the use of that material is custo- mary. Wyman v. The Duart Gastle (1899) 6 Can. Exeh. 387. It is negli- gent to use steam pipes without attach- ing a drip pipe to draw off the water from condensed steam. MeeTcer v. G. R. Remington & Son Go. (1901) 62 App. Div. 472, 70 N. Y. Supp. 1070. (3) Appliances for breaking up pieces of metal. — It is not negligent to use, for breaking castings, an appliance which is similar to those used in other foundries. Wood v. Heiges (1896) 83 Md. 257, 34 Atl. 872. (4) Appliances for the transmission of power. — ^A master is not bound to ex- change a shipper on a belt for another kind. Gushman v. Gushman (1901; Mass.) 61 N. E. 262. Where an em- ployer has conformed to general usage, he cannot be held negligent in failing to use certain suggested contrivances to prevent the shifting of a belt shipper. Ross V. Pearson Gordage Go. (1895) 164 Mass. 257, 41 N. E. 284. Negligence is not inferable from the mere fact that a belt was used, which was apt to slip back from the loose on to the fixed pul- ley, if it was not held a certain length of time on the loose pulley after it was shifted. Shaffer v. Haish (1885) 110 Pa. 575, 1 Atl. 575. The mere fact that the addition of a counter shaft and a. fast and loose pulley to a machine would have made it safer to connect and disconnect the power does not render an employer guilty of negligence in not making that addition. Jacoison v. Gor- neliMS (1889) 52 Hun, 377, 5 N. Y. Supp. 306. Whether it is negligent to operate a planer without a belt shifter or tightener is a question for the jury, where there is evidence that such a de- vice was sometimes used, and also evi- dence that it was impracticable in the given case. Maxwell v. Zdarski (1900) 93 111. App. 334. An employer may be found guilty of negligence, where the evidence tends to show that the means adopted for fastening together the pieces of a belt were inadequate for that purpose {McOar v. National & P. Worsted Mills [1901] 22 R. I. 347, 47 Atl. 1092 [belting laced by a single strand placed in a single row of holes at each end of a joint] ) ; especially if it ap- pears that he did not conform to general usage (Nix v. Texas P. R. Go. [1891] 82 Tex. 473, 18 S. W. 571). But he cannot be declared to be negligent merely because he uses one kind of fast- ener, rather than another. Harley v. Buffalo Gar Mfg. Go. (1894) 142 N. Y. 31, 36 N. E. 813. In Columbia & P. 8. R. Go. V. Hawthorne (1888) 3 Wash. Terr. 353, 19 Pac. 25, where the injury was caused by the fact that a pulley on a shaft, having become loose, impinged on the nut at the end of the shaft, and thus caused the nut to unscrew and come off, and so let the pulley fall, the court said that the nut should have been screwed on in such a manner that the friction would tighten it. (5) Appliances for handling ladles of molten m,etal. — On the ground that common usage required the adoption of another appliance, it has been held that the use of a common round stick with- out holes in it, as a lever for tipping a large ladle of molten metal, implied negligence. Flaherty v. Norwood Engi- neering Go. (1898) 172 Mass. 134, 51 N. E. 463. (6) Emery wheels. — The failure to use copper as a, filling for emery wheels is not negligent, where the evidence merely is that one manufacturer uses it. Breig v. Chicago & If. M. R. Go. (1893) 98 Mich. 222, 57 N. W. 118. (7) Appliances for handling timber. — Whether the furnishing of crowbars and pinch bars, instead of cant hooks, to handle piles, is negligence, is a ques- tion for the jury, where the evidence is that cant hooks are the usual appli- ances. Anderson v. Illinois C. R. Go. (1899) 109 Iowa, 524, 80 N. W. 561. (8) Devices for attaching parts of appliances to each other. — Negligence is inferable where a heavy iron bar is placed where it is liable to be struck by the arm of a crane, and sus- i 79] l>ECiSIONS AS TO VAKIOUS APPLIANCES. 213 79. Structures. — (See also § 97, post.) — The servant is sometimes allowed to recover, simply on the groimd that the stinicture in ques- tion was dangerous to a person exercising reasonable care.^ The obvious character of the risk involved will ordinarily prevent recovery for an injmy, caused by the fact that the servant was re- quired to work on an elevated structure which was unprotected by a railing or other safeguard to prevent him from falling off.^ The de- pended by chains to wliich it is attached chine was so placed that it threw a only by two open hooks. Monaghan v. piece of leather into such a position Pacific Rolling Mill Go. (1889) 81 Cal. that the head block of the machine "re- 190, 22 Pao. 590. peated" at an unexpected time, and (9) Devices for keeping heavy ma- crushed a servant's hand, it was held chinery in place. — No negligence is im- that he could not recover as the attach- putable where machinery, which is set nient was a permanent, visible one. up in the usual way, falls on a servant. Quigley v. Thomas 0. Plant Co. (1896) Schultz V. BeojT Creek Ref. Go. (1897) 165 Mass. 368, 43 N. E. 205. See also 180 Pa. 272, 36 Atl. 739; Augerstein v. subd. 4 of this note, supra. Jones (1891) 139 Pa. 183, 21 Atl. 24. 'As, where a platform, designed for (10) Formers. — A railway company use in oiling an overhead shaft, con- is not liable because it uses a single sisted of a single plank 10 or 12 inches former in its shops, instead of a double wide, at a considerable height from the one, though the latter is superior. Gag- floor, and resting upon brackets placed ney v. Hannibal & St. J. R. Co. (1879) at different heights and different angles, 69 Mo. 416. so that the board was inclined. Zim- (11) Appliances for cutting rails. — merman v. Detroit Sulphite Fibre Co. A jury cannot be allowed to declare a (1897) 113 Mich. 1, 71 N. W. 321. A railway company negligent because a reasonably safe means of access to an hammer and chisel were used, instead elevated structure must be provided. of a saw, as on some roads, to cut rails. Williams v. Birmingham Battery & Apati V. Delaware, L. & W. R. Go. Metal Co. [1899] 2 Q. B. 338, 68 L. J. (1901) 64 App. Biv. 515, 72 N. Y. Q. B. N. S. 918 (no ladders or other Supp. 322 (fragment broke oif of ham- means of reaching a tramway). It is mer). negligence to construct a, coal chute the (12) Appliances on ships. — A ship sides of which are so low that lumps of has been held liable for furnishing to a coal roll over. Groicn Coal Go. v. TOaman, for the purpose of painting a Hiles (1892) 43 111. App. 310. mast, a new rope, too large for the pur- ^ As, where the servant was required pose, and so stiff that, on the short tog- to stand on a platform for the purpose gle furnished, by reason of its unplia- of assisting in the work of storing ice bility it could not be made to grip hard (Moulton v. Cage [1895] 138 Mass. enough to hold the toggle in place, or to 390 ) ; or to wheel heavy loads on a bar- hold the half hitches made around the row along a narrow platform (Kaare v. same by the running part of the gant- Troy Steel & I. Go. [1893] 139 N. Y. line. Johnson Y. J ohansen (1898) 30 C. 369, 34 N. E. 901); or to use a steep C. A. 675, 58 U. S. App. l04, 86 Fed. stairway without a railing, and with 886. No negligence is inferable where ."steps at irregular distances {Sweet v. the chock on a tugboat is constructed Ohio Coal Co. [1890] 78 Wis. 127, 9 L. and secured in the usual way. The Liz- R. A. 861, 47 N. W. 182) ; or to stand zie Frank (1887) 31 Fed. 477. on a platform while endeavoring to (13) Arrangements permitting an- prize a, pulley off of a shaft {Ghesa- tomatic movements of machinery. — It peake, 0. & S. W. R. Go. v. McDowell is not negligent to omit to provide a [1894] 16 Ky. L. Rep. 1, 24 S. W. 607) ; clutch for an embossing machine, other or to work on a narrow platform run- than the pedal, to prevent the auto- ning alongside the track of an elevated matic motion in the machine. Siveeney railway {Nugent v. Brooklyn Union V Berlin & J. Envelope Co. (1886) 101 Flev. R. Co. [1901] 64 App. Div. 351, N. Y. 520, 54 Am. Rep. 722, 5 N. E. 358. 72 N. Y. Supp. 67). Where the guard of a dieing-out ma- 214 MASTER AND SERVANT. [cHAi?. Vtil. feetive lighting of the structure may be a differentiating factor, suf- ficient to take tlie case to the jury, if the platform is so shaped that the want of the light converts it into a pitfall at some particular point.^ Compare § 80, note 7. Otherwise, it seems, this circum- stance will not enable the servant to recover.'' The particular kind of structure furnished for a given purpose is left to the discretion of the master,^ except in so far as the usages of the business may affect his responsibility.® 80. Unguarded openings in floors, open hatchways, etc. — (See also § 100, post.) — Some courts proceed upon the theory that the mainte- nance of ungTiarded openings required for the purposes of the mas- ter's business does not import negligence, where they are plainly visi- ble, and there is no special circumstance which renders them pecu- liarly dangerous.' The rationale of the conclusion thus arrived at ' H. C. AJceley Lumber Go. v. Rauen (1893) 7 C. C. A. 424, 19 U. S. App. 253, 58 Fed. 668 (platform, at the place of the accident, extended only 6 or 8 inches outside the track along which loaded cars had to be pushed. No light available but that of a fellow servant's lantern) . * A master who builds a bridge for the purpose of giving access to his works, and makes it sufficiently wide to admit of the passage of vehicles, cannot be found guilty of negligence on the ground that it was not protected on either side by a fence, and not lighted by a lamp. Rob- ertson V. Adamson (1862) 24 Se. Sess. Cas. 2d series, 123 (stress was here laid on the fact that the injured person had been in the service for twenty years, and the bridge had been in the same condition the whole of that time ) . ° Negligence is not inferable from the fact that a single ladder 120 feet long, instead of several shorter ones, was used as a means of ascending and de- scending a shaft. O'Ufeill v. Wilson (1858) 20 Se. Sess. Cas. 2d series, 427. Nor from the fact that a passage and steps in a basement are cut out of the solid earth, instead of being made from stone, wood, or cement. McCarthy v. Shoneman (1901) 198 Pa. 568, 48 Atl. 493. Nor from the fact that movable steps were used as a means of access to a cellar. Reqan v. Donovan (1893) 159 Mass. 1, 33 N. E. 702. " Usage has been held to sanction the employment of a board track on which to run push cars loaded with the lumber used in building a bridge. Bedford Belt R. Co. V. Brown (1895) 142 Ind. 659, 42 N. E. 359. On the ground of conformity to usage, it has been denied that there was negligence in locating wooden buildings so close to the intake air way that, if they are set on fire, that way will be filled with sruoke and pos- sibly suffocate miners. Coal Creek Min. Co. V. Davis (1891) 90 Tenn. 711, 18 S. W. 387. For the same reason it has been held that no action could be maintained for an injury caused by the want of a fence round the lower part of a shsft through which iron ore is raised to a furnace gangway {Murray v. Merry [1890] 17 Sc. Sess. Gas. 4th series, 815 [laborer injured by a stone which fell down the shaft, and, striking against the side, rebounded so that it hit him while he was standing outside] ) ; or by the omission to provide a covering to protect workmen from coal which may fall from a hoisting bucket at a dock {PrybilsU v. Northwestern Coal R. Co. [1898] 98 Wis. 413, 74 N. W. 117). On the ground that there was no evidence of any different usage, it has been held that the fact that no staging was fur- nished for the transfer of cotton from ' a barge to a river steamboat does not import negligence. Red River Line v. Smith (1900) 39 C. C. A. 620, 99 Fed. 520. On the other hand, the master's nonconformity to usage has been held to justify a jury in finding that it was negligence to build a platform only one plank thick in a shaft. Smizel v. Odan- ah Iron Co. (1898) 116 Mich. 149, 74 N. W. 488. 'Recovery has been denied, where 80j DECISIONS AS TO VARIOUS APPLIANCES. 215 is, mainly, that the servant understands and assumes the risks inci- dent to such arrangements. See chapter vii.;, ante. But nonculpa- bility is also supposed, in some instances, to be a proper inference from the fact that the risks to which the servant is exposed are of such a nature that he can avoid injury by the exercise of ordinary care." Other courts consider that the servant's right to recover for in- juries caused by conditions of this sort is primarily a question for the jury, the view being taken that the general rule of law, by which the owner of premises is bound to guard persons lawfully entering thereon from injury by pitfalls, is applicable as between master and servant no less than between persons having no contractual relations with each other.^ In some cases it has been held that even the fact of the defendant's having conformed to general usage in regard to the maintenance of the opening did not necessarily absolve him.* The courts belonging to the former group regard the liability of the master as being a question for the jury, where the opening in question had no direct connection with the business carried on at the establish- servants fell through a trap door in a passage way (Anthony v. Leeret [1887] 105 N. Y. 591, 12 N. E. 561); an un- guarded and unlighted hole in the floor of a theater (Seymour v. Maddox [1851] 16 Q. B. 326; decision denied to be correct in Ryan v. Fowler [1862] 24 N. Y. 410, 82 Am. Dec. 315) ; a trap door in a laundry, for passing goods from one floor to the other (Moore v. Ross [1890] 17 Sc. Sess. Cas. 4th series, 796) ; a trap door in a factory (Kolb V. Sandwich Enterprise Go. [1890] 36 III. App. 419); a pit in a railway roundhouse (McDonnell v. Illinois G. R. Co. [1898] 105 Iowa, 459, 75 N. W. 336) ; a cistern (McGann v. Atlantic Mills [1898] 20 R. I. 566, 40 Atl. 500) ; an uncovered well, containing hot water (Feely v. Pearson Cordage Co. [1894] 161 Mass. 426, 37 N. E.. 368). ^This consideration was emphasized in a case where a trap door was fre- quently opened within 6 feet of the bench where a servant worked. Kupp V. Rmnmel (I90I) 199 Pa. 90, 48 Atl. 679. ^ ^ ^ N-uhack v. Chamipagne Lumoer Go. (1901) 48 C. C. A. 632, 109 Fed. 732 (no guard rail round an opening in the floor of a mill) ; Powers v. Calcasieu Sugar Co. (1896) 48 La. Ann. 483, 19 So 455 (open ditch of scalding water) ; Musiok v. Jacoi Dold Packing Co. (1894) 58 Mo. App. 322 (uncovered and unguarded tank of hot water) ; Irmer V. St. Louis Brewing Co. (1897) 69 Mo. App. 17 (similar facts). An employer who sets an employee to work to rake out the contents of a cylin- drical tank more than 5 feet in diam- eter and 3 feet high, through a door less than a foot wide^ with a space 2 feet 11 inches wide on each side of the center of the door to stand upon, with a vat filled with boiling tallow immediately adjoining and covered by a lid liable to be misplaced, or so constructed that a step of the laborer may precipitate him into the vat, — is liable for his death by falling into such vat. The footing thus provided is too narrow for a servant whose attention is apt to be diverted by his work. Hess v. Rosenthal (1894) 55 111. App. 324, Affirmed in (1896) 160 111. 621, 43 N. E. 743. ' McCormirk Harvesting Mach. Co. v. Burandt (1891) 136 111. 170, 26 N. E. 588, Affirming (1890) 37 III. App. 165 (unguarded trough); Reichla v. Gru- ensfelder (1892) 52 Mo. App. 43 (un- guarded tank); Kirk v. Scully (1898) 79 111. App. 67 (opening in floor of building nearly completed) ; Indiana Pipe-Line & Ref. Co. v. Neusbaum (1899) 21 Ind. App. 361, 52 N. E. 471 (open well, just dug, was left un- guarded on a dark night). 216 MASTER AND SERVANT. [chap. Vllt. ment where the servant was working.^ These courts also consider that the master may properly be found negligent, where the opening, is so located as to be peculiarly dangerous to employees.^ ISTor, it would seem, could it be successfully contended in any jurisdiction that a servant's right of action is not primarily a question for the jury, where the opening in question was rendered unusually hazard- ous by the want of proper lighting.''' Compare § 79, note 3. The appointment of a watchman to warn servants against the dan- gers created by openings is a sufficient performance of the master's duty to guard them.^ 81. Substances generating explosive gases. — (See also § 103, in- fra.) — ISTegligence has been denied to be inferable from the fact that the paint supplied for painting a tank was composed of ingredients "In Hoffman v. dough (1889) 124 Pa. 505, 17 Atl. 19, it was held that the plaintiff, who had been hired to operate a carding machine, could not be said, as a, matter of law, to have assumed the risk of falling into a well of water with a loose cover which was frequently re- moved. The court said : "The dangers incident to the business of operating a carding machine, reasonably suitable for the work to be done, were assumed when the employee entered upon his work; but dangers from an opening in the floor, from an insufficient staircase, or other defect in the building, were in- cident to the place where the business was conducted." " It has been held error to nonsuit the servant where he fell through an open trap door, which was maintained on the line along which employees had to pass, in going from one room to another. Johnson v. Bruner (1869) 61 Pa. 58, 100 Am. Dec. 613; Uaguire v. Little (1887; R. I.) 13 Atl. 108. 'In Eastland v. Glarhe (1901) 165 N. Y. 420, 59 N. E. 202, Reversing (1898) 28 App. Div. 621, 51 N. Y. Supp. 1140, the plaintiff recovered for an in- jury caused by his falling into a hole in the cellar of a house, the hole being left without the cover provided for it. In Sansol V. Compagnie Generale Transat- lantique (1900) 101 Fed. 390, a long- shoreman who fell through a, trap door in a dark passage on a steamer was al- lowed to recover. A ship is liable where a workman, in the discharge of his duty, falls down an open and unlighted hatchway in a, passage along the side of a ship. The Guillermo (1886) 26 Fed. 921, distinguishes cases where the ordi- nary hatches for the discharge of cargo are left open, which, as they may be exr pected to be left open in port, persons going on board ships must avoid at their peril. The existence, on an ele- vated trestle, within 7 feet of where em- ployees were working, of an uncovered hole 7 feet long and 4 feet wide, through which a fall might prove fatal, is a peril to which defendant cannot prop- erly expose its servants at night, in the absence of light sufficient to disclose its presence. Boyle v. Degnon-McLean Constr. Co. (1900) 47 App. Div. 311, 61 N. Y. Supp. 1043, leave to appeal denied 49 App. Div. 636, 63 N. Y. Supp. 1105. In National Syrup Co. v. Carlson (1893) 47 111. App. 178, plaintiff recov- ered, where the railing of the elevator shaft had been taken off during the day without his knowledge, and he had come into the building after dark. In a Mas- sachusetts ease, it was observed that a jury would perhaps be warranted in finding that an employer was negligent in leaving an elevator well, which was situated in a dark basement, where his servants were obliged to go frequently, open and unguarded by a fence or any suitable protection. Taylor v. Carew Mfg. Go. (1885) 140 Mass. 150, 3 N. E. 21. The nature of the duty of a ship- owner in regard to the lighting of open hatchways is a question to be deter- mined by considering the usual custom in respect to such lighting on board sim- ilar vessels. Sunney v. Holt (1883) 15 Fed. 883. » Gray v. Thomson (1889) 17 Sc. Sess. Cas. 4th series, 200 (watchman here was appointed by a shipowner in compliance with the by-laws of the harbor). §§ S2, 83] DECISIONS AS TO VAUIOUS APPLIANCES. 217 "which gave off an explosive gas, where it is also shown that it was an article in common use and of a well-known brand.-' It has also been held that conformity to usage was a conclusive defense, where the employer had purchased, for the conveyance of castings, old barrels which had been filled with benzine, whisky, etc., so that there was likely to be an explosion if a naked light were placed near them.^ But the present writer is of opinion that, in each of these instances, it was a fair question for the jury whether the employer ought not to have inquired more closely into the conditions, before allowing the appliances in question to become part of his plant. 82. Substances giving off poisonous fumes. — It is not negligent to use in a stove a patent fuel which produces dangerous fumes which will suffocate anyone sleeping in the room, if the door is closed.^ An employer cannot be found negligent because he uses acids which give off poisonous fumes, unless it is shown that his practice in this re- spect is different from that of other employers in the same business.^ 83. Appliances for giving servants warning of danger. — On the ground of conformity to usage, it has been held that a mine owner cannot be held guilty of negligence because he has not provided any appliance in the mine for giving warning to persons working in a pocket that a draw is about to be made of the coal from the chutes.^ So, also, it has been laid down that the question whether whipping straps, or telltales of some other kind, should be adopted as a means of warning trainbands of the proximity of low bridges, is one which is to be determined by the common usage of well-conducted railway companies.^ The tags used to indicate cars condemned as unfit for further use and ordered to be taken to the repair shop are not sufficient, unless they are of such a size and character as to give due notice of the con- dition of the cars to employees Avho have to handle them at night.^ Numerous cases dealing with the suificiency of the master's per- formance of the obligation to warn his servants of danger, in so far ^Allison Mfg. Co. v. McCormiok ' Corcoran y. Wanamaker (1898) 185 (1888) 118 Pa. 519, 12 Atl. 273. Pa. 496, 39 Atl. 1108. ' Purdv V. Westinghouse Electric & ^Lehigh & W. B. Coal Go. v. Hayes Ufa. Co. (1900) 197 Pa. 257, 51 L. E. (1889) 128 Pa. 294, 5 L. R. A. 441, 18 A. 881, 47 Atl. 237. Atl. 387. ^ Murch V. Thomas Wilson's Sons & 'Louisville & 'N. R. Co. v. Hall Co. (1897) 168 Mass. 408, 47 N. E. (1890) 91 Ala. 112, 8 So. 371. lli (not the least singular example of 'Meyers v. Illinois C. R. Go. (1897) the unflinching steadiness with which 49 La. Ann. 21, 21 So. 120, this court follows out a principle, even to the most preposterous conclusions). Hi JlASTEfe AND SERVANT. tcHA^. Vttt. as such performance is connected with the manner in which his busi- ness is conducted, are cited in chapters xv. and xvi., post. B. Injuries caused by conditions of an abnormal, teansitoey, OE SPOE.VDIC CHARACTBE. 84. Conditions of railway tracks and appurtenances by which the safe operation of trains is affected. — (See also §§ 67, 68, supra.) — ISTegligence is inferable from the fact that the track itself was in an intrinsically defective condition;^ or from the fact that the bridges and other structures built to support the track were inadequate for ' As, where the ties or rails were of 423 ; Dale v. St. Louis, K. G. & N. R. Co. poor quality. O'Donnell v. Aller/heny (1876) 63 Mo. 455 (defective joint); VaMey R. Go. (1868) 59 Pa. 239, 98 Houston & T. G. R. Go. v. Oaither Am. Dec. 336; Burrell v. Goicen (1890) (1896; Tex. Civ. App.) 35 S. W. 179. 134 Pa. 527, 19 Atl. 678; McFee v. Or where the defective drainage ren- Vichshurg, S. & P. R. Go. (1890) 42 La. dered a portion of the track temporarily Ann. 790, 7 So. 720; James v. 'Northern insecure. See § 68, c, supra. That a P. R. Co. (1891) 46 Minn. 168, 48 N. rail broke solely by reason of frost and W. 783; B'lehan v. Syracuse, B. & N. Y. cold weather does not import negligence. R. Co. (1878) 73 N. Y. 585; Louisville, Devlin v. Wahash, St. L. & P. R. Co. E. <& St. L. Consol. R. Co. v. Miller (1885) 87 Mo. 545. In Atchison, T. & (1895) 140 Ind. 685, 40 N. E. 116; S. i?. iS. Co. v. Or-oiZ (1896) 3 Kan. App. Henry v. Lake Shore & M. S. R. Co. 242, 45 Pae. 112 (Reversed in 57 Kan. (1882) 49 Mich. 495, 13 N. W. 832; 548, 46 Pac. 972, but this point was not iCrogg v. Atlanta & W. P. R. Co. discussed), it was held that the exist- (1886) 77 Ga. 202; Chicago, L. S. & E. ence of low joints at certain points R. Go. V. Hartmann (1897) 71 111. App. along a railroad track, caused by the 427; Swadley v. Missouri P. R. Co. ground being wet and the frost coming (1893) 118 Mo. 268, 24 S. W. 140; out of the ground, did not of itself Houston & T. G. R. Co. v. McNamara charge the company with negligence (1893) 59 Te.x. 255; Taylor, B. d B. R. rendering it liable for injuries to an Co. V. Taylor (1890) 79 Tex. 104, 14 S. employee working near the track from W. 918; Little Rock, M. R. & T. R. Co. the fall of coal from a passing tender, V. Leveictt (1886) 48 Ark. 333, 3 S. W. due to one of such low joints, where the 50; Devlin v. Wabash, St. L. & P. R. track is a good rock-ballasted track, and Co. (1885) 87 Mo. 545; Wright v. in good order in other respects. In In- Southern R. Co. (1898) 122 N. C. 959, diana it has been held that negligence 30 S. E. 348. Or where the rails were cannot be inferred merely from the fact out of alignment. Coughlin v. Brook- that a, side traeic on a new line was so lyn Heights R. Go. (1901) 59 App. Div. uneven as to jolt a servant off of a 126, 68 N. Y. Supp. 1105. Or where train. For anything that such a condi- the track was too rough for the safe op- tion shows, the company may have ex- eration of trains. Sabine & E. T. R. ereised proper care. O'Neal v. Chicago ' Co. V. Eioing (1894) 7 Tex. Civ. App. d I. Coal R. Co. (1892) 132 Ind. 110, 31 8, 26 S. W. 638 (see, however, cases at N. E. 669. In Massachusetts the possi- the end of this note ) . Or where the bility of an occasional jolt is regarded rails were not properly fastened. Mc- as an ordinary risk of the work of an Combs V. Pittsburg & W. R. Co. (1889) employee on a street railway. Mc- 130 Pa. 182, 18 Atl. 613 (want of fish Gauley v. Springfield Street R. Co. plates on a siding); Rosenbaum v. St. (1897) 169 Mass. 301, 47 N. E. 1006 Paul & D. R. Co. (1888) 38 Minn. 173, (no action maintainable by a conductor 36 N. W. 447 (ties not spiked on tem- who goes out on the bumper in order to porary siding) ; Chicago 0. W. R. Go. facilitate the operation of replacing the V. Price (1899) 38 C. C. A. 239, 97 Fed. trolley on the wire). § 84] DECISIONS AS TO VARIOUS Af PLlASTCES. 219 that purpose ;^ or had been destroyed by some catastrophe f or from the fact that a switch had fallen into disrepair ;■* or from the fact that certain material substances extrinsic to the track itself, but situated on or near it, rendered the operation of trains unduly dangerous.' A servant operating a construction train cannot maintain an action on the theory that the ballasting was imperfect and the number of ' Bogart v. Delaware, L. & W. B. Co. (1895) 145 N. Y. 283, 40 N. E. 17; Warner v. Erie R. Go. (1868) 39 N. Y. 468; Vosburgh v. Lake Shore & M. 8. R. Co. (1884) 94 N. Y. 374, 46 Am. Rep. 148; Faulkner v. Erie R. Co. (1867) 49 Barb. 324; Toledo, P. & W. R. Co. V. Conroy (1873) 68 111. 561 (1871) 61 III. 162; Louisville, 'N . A. & G. R. Co. V. Sandford (1889) 117 Ind. 265, 19 N. E. 770; Carlson v. Oregon Short Line & V. N. R. Co. (1892) 21 Or. 454, 28 Pae. 497 ; Bowen v. Chicago, B. & K. G. R. Co. (1888) 95 Mo. 268, 8 S. W. 230; Locke v. Siouw City & P. R. Go. (1877) 46 Iowa, 109; Chicago G. W. R. Co. V. Healy (1898) 30 C. 0. A. 11, 57 U. S. App. 513, 86 Fed. 245; Bach V. Iowa G. R. Go. (1900) 112 Iowa, 241, 83 N. W. 959 (rotten timbers of a cat- tle guard sank under the engine, so that the pilot struck the guard rail and moved the switch). ' Maydole v. Dewcer & R. G. R. Go. (1900; Colo. App.) 62 Pac. 964 (a bridge burned down). The liability in such a case as this is, of course, predi- cated only when it is shown that the de- fendant was chargeable with notice of what had occurred. See, generally, chapters x., xi., post. * Barter v. Atchison, T. & 8. F. R. Go. (1895) 55 Kan. 250, 38 Pao. 778 (de- railment of train). ' As, where obstructions are allowed to remain on the track. True v. Lehigh Valley R. Go. (1897) 22 App. Div. 588, 48 N. Y. Supp. 86; Fisher v. Oregon Short Line & U. V. R. Co. (1892) 22 Or. 533, 16 L. R. A. 519, 30 Pac. 425 (a snow slide covered track; case dis- tinguished from one of a snow drift, which is a risk assumed) ; Wellman v. Oregon Short-Line & U. N. R. Go. (1892) 21 Or. 530, 28 Pac. 625 (same facts) : Benry v. Walash Western R. Go. (1891) 109 Mo. 488, 19 S. W. 239 (a freight car, not being properly se- cured on a siding, escaped onto the main track. But qucere, as to the lia- bility under such circumstances, since the accident presumably occurred ow- ing to the negligence of fellow servants, and, according to the ordinary view, the company would not be liable imless it was negligent in failing to discover what had occurred in time to prevent a catastrophe. See chapter x., post) ; Balhoff V. Michigan G. R. Go. (1895) 106 Mich. 606, 65 N. W. 592 (water flooded the track and froze) ; McGlar- ney v. Chicago, M. & St. P. R. Co. (1891) 80 Wis. 277, 49 N. W. 963 (an accumulation of dirt, ice, snow, and chaff around the rails of a side track caused a derailment). Or where the sides of the cuttings through which the line is carried are left in such a condi- tion that masses of earth, rocks, etc., may fall upon the roadbed. True v. Le- high Valley R. Go. (1897) 22 App. Div. 588, 48 N. Y. Supp. 86 (an earth slide) ; Bean v. Western N. G. R. Go. (1890) 107 N. C. 731, 12 S. E. 600 (rocks were likely to fall on the track at any moment) ; Little Rock & Ft. 8. R. Co. v. Voss (1892; Ark.) 18 S. W. 172 a large rock slipped down upon the track). Or produce in some other way conditions which will unduly imperil the security of employees. Holden v. Fitchhurg R. Go. (1880) 129 Mass. 268, 37 Am. Rep. 343 (bank fell on a der- rick, and tbus brought one of the guys so close to the track that it swept a brakeman off a car ) . Or where there was a thick growth of bushes near the track, which prevented the engineer from seeing ahead of the train. Eamcs V. Texas & N. 0. R. Go. (1885) 63 Tex. 660; Oregon Short Line & U. N. R. Go. V. Tracy (1895) 14 C. C. A. 199, 29 U. S. App. 529, 66 Fed. 931. Bur, no ac- tion can be maintained on the theory that the track was frequently obstructed by the movements of the cars, so that a crossing could not be seen. This is an ordinary risk. Bancroft v. Boston & M. R. Go. (1893) 67 N. H. 466, 30 Atl. 409 (collision of train with team) ; Rumsey v. Delaware, L. d W. R. Go. (1892) 151 Pa. 74, 25 Atl. 37 (a simi- lar accident). m Master and servant. [oHAf . vnt. ties inadequate, where these conditions were a necessary incident of one of the stages of the work as it was being carried on.® As regards employees engaged in iJie work of repairing a defective track, the company is not under any obligation to keep it in good con- dition.'' The extent of its duty is merely to give them timely notice of the defects, so that they may take the appropriate precautions to secure themselves against injury.* See generally, as to cases of this class, § 29, ante. 85. Track considered as a footway for servants. — (See also § 69, supra.) — a. Track and roadbed itself. — From the decisions cited be- low, it will be seen that the servant has generally been permitted to recover for injuries due to the abnormal condition of any of the com- ponent parts of the permanent way.-* But there is some conflict of opinion as to the liability of the company for one particular kind of injury, viz., that caused by a brakeman's clothes catching in splint- ers projecting from old and battered rails.^ By a court which denies that there is any obligation on the part of a company to keep the track safe as a footway (see 68, h, supra), it has been held that inequalities on a track at a station, occasioned by " Evansville & B. B. Co. v. Hender- son (1893) 134 Ind. 636, 33 N. E. 1021. ''Mitchell V. FulUngton (1889) 83 Ga. 301, 9 S. E. 1083. = St. Louis, I. M. & 8. B. Go. v. Mor- gan (1885) 45 Ark. 318. '■ The action has been held maintain- able where the cause of the injury was a loose and worn plank on a crossing. Bird V. Long Island B. Co. (1896) 11 App. Div. 134, 42 N. Y. Supp. 888. Defective planking on the track. Chi- cago & W. I. B. Co. V. Massig (1893) 50 111. App. 666. A hole in the track. Northern P. B. Go. v. Teeter (1894) 11 C. C. A. 332, 27 U. S. App. 316, 63 Fed. 527 ; Porter v. Hannibal & St. J. B. Go. (1879) 71 Mo. 66, 36 Am. Rep. 454; Lake Erie &'W. B. Go. v. Wilson (1901) 189 111. 89, 59 N. E. 573. A hole out- side the track. Missouri, K. & T. B. Co. V. Kirhlwnd (1895) 11 Tex. Civ. App. 528, 32 S. W. 588; Needliam v. Louisville & ff. B. Co. (1887) 85 Ky. 423, 3 S. W. 797, 11 S. W. 306. A de- fective frog. Hunt v. Kane (1900) 40 C. C. A. 372, 100 Fed. 256. The de- fective blocking of a guard rail. Paine V. Eastern B. Co. (1895) 91 Wis. 340, 64 N. W. 1005. A depression in the track causing an abnormal movement of ears which were being coupled. Texas, 8. V. & N. W. B. Co. V. Guy (1893; Tex. Civ. App.) 23 S. W. 633 (draw- bars slipped past each other) ; Louis- ville & N. B. Co. V. Kemper (1899) 153 Ind. 618, 53 N. E. 931 (the track sud- denly settled, and allowed a car to rush down into the depression with unex- pected speed, crushing a, brakeman's foot) . ^ In Georgia it has been held that such a condition imported a prima facie breach of duty. Preston v. Central B. d Bkg. Co. (1889) 84 Ga. 588, 11 S. E. 143. In Minnesota the right of action has been denied, — in one case on the ground of there being a common prac- tice in that part of the country to use old rails for side tracks (Doyle v. jSf*. Paul, M. d M. B. Go. (1889) 42 Minn. 79, 43 N. W. 787 ) ; and, in another case, apparently for the reason that a pro- jecting splinter at the end of a rail on a side track, extending inwards f of an inch for a distance of 3 inches along the rail, created what was merely an ordi- nary risk. Barrett v. Great Northern B. Go. (1898) 75 Minn. 113, 77 N. W. 540. In Michigan the same conclusion has been reached, the reason assigned being that the risk thus created was ob- vious. Michigan C. B. Co. v. Austin (1879) 40 Mich. 247. § 85] DECISIONS AS TO VAKIOUS APPLIANCES. 221 recent repairs, are presumed to be known to a brakeman, and that he cannot recover for injuries received through stumbling.^ h. Casual obstructions on or near the trach. — Several courts have rendered decisions which proceed upon the theory that negligence may be inferred where movable articles having no immediate con- nection with the operation of trains are left lying on the track, and cause employees to lose their footing.* Similarly, employees have been allowed to recover where their injuries were due to obstructions of this kind beside the track.^ But it is conceded that the company may, without culpability, allow such articles to remain temporarily ■near the track, when they are placed there in the ordinary way for the purpose of repairing the track itself.® Other courts absolve the company on the ground, more or less dis- tinctly formulated, that a railway company cannot be found guilty of negligence on the tJieory that it is bound to keep the entire sur- face of its premises clear of every object that may cause an employee to slip or be thrown down.'^ The existence of any obligation to keep the gTound near the track free from accumulations of snow and ice has been denied in one case on the ground that the danger they create is one of the ordinary risks of work in cold climates.® By other authorities they seem to be put 'Philadelphia & R. R. Go. v. Schertle "Hurst v. Kansas City, P. & 0. R. (1881) 97 Pa. 450. Co. (1901) 163 Mo. 309, 63 S. W. 695 * Kennedy v. Lake Superior Terminal (recovery denied where a brakeman <& Transfer R. Co. (1896) 93 Wis. 32, stumbled over one of several piles of 06 N. W. 1137 (ashes) ; Linck v. Louis- gravel distributed in a yard, as a pre- ville & N. R. Co. (1899) 21 Ky. L. Rep. liminary to using them for ballast). 1097, 54 S. W. 184 (rubbish) ; Louis- 'It has been held that no action can ville & N. R. Co. v. Vestal (1899) 20 be maintained for an injury to an em- Ky. L. Rep. 1288, 49 S. W. 204 (a large ployee caused by falling over a clinker clinker about 1 foot long and 6 inches of unusual size in descending from an thick turned under a switchman's engine. Such an injury is simply a foot); Fish v. Illinois C. R. Co. (1896) misfortune, — the incident of the em- 96 Iowa, 702, 65 N. W. 995 (cobble ployment, and of the risk consequent stones had dropped from gravel trains ) . therein. Lee v. Central R. & Blcg. Co. ^Hulehan v. Green Bay, W. & St. P. (1890) 86 Ga. 231, 12 S. E. 307. Nor R. Co. (1887) 68 Wis. 520, 32 N. W. can a brakeman recover damages where 629 (blocks of timber beside the track) ; he trips over a small spiral spring Southern P. R. Co. v. Markey (1892; which has been left lying on a repair Tex ) 19 S W. 392 (similar facts) ; track. Williams v. St. Louis & S. F. Bail v. Missouri P. R. Co. (1881) 74 R. Co. (1893) 119 Mo. 316, 24 S. W. Mo. 298 (rail near the track) ; Benqt- 782. Th« risks created by the heaps of son V. Chicago, St. P. M. & 0. R. Go. ashes which it is the custom to drop (1891) 47 Minn. 486, 50 N. W. 531 (a out of the fire box onto the track are section man stumbled over a log while assumed by servants handling cars, trying to get out of the way of a JIucfhes v. Winona & St. P. R. Go. train) ; Chicago, R. I. & P. R. Co. v. (1880) 27 Minn. 137, 6 N. W. 773. Kinnare (1900) 91 111. App. 508, Af- ' Piquegno v. Chicago d G. T. R. Go. firmed in (1901) 190 111. 9, 60 N. E. 57 (1883) 52 Mich. 40, 50 Am. Rep. 243, (sand and gravel alongside track). 17 N, W. 232- 222 MASTER AND SERVANT. [chap. VIII. in the same category as any other kind of casual obstruction, the com- pany being held liable or not, according to circumstances.® 86. Objects dangerous to employees in moving trains or cars. — (See also §§ 70, 71, supra.) — a. On the track.- — An employee who, while seated on a hand car with his legs hanging down over the edge, was struck by a plank of a crossing which stuck up several inches above its proper level, has been held entitled to recover.^ It is not negligence to leave cars on a side track so close to a switch that a train traveling at the usual speed of 30 or 35 miles an hour, and running out upon the side track, cannot be stopped in time to avoid a collision.^ b. Alongside the track. — It may be presumed that even the courts which deny that a train hand can recover for an injury caused by striking against a rigid object close to the track, while it is in its normal position, would all concede that there is a prima facie right of action where the injury was due to the fact that the object in ques- tion was closer than usual to the track at the time when the accident occurred.* Nor is there any ground upon which the presence of a casual ob- ° Recovery has been allowed where a brakeman lost his footing on frozen mud and snow which had accumulated be- tween the rails. Lahe Shore & M. 8. R. Go. V. Conway (1896) 67 111. App. 155. And where he fell on heaped-up snow, which the company permitted to be shoveled from its tracks onto the space between them. Gregg v. Ghicago & W. M. R. Co. (1892) 91 Mich. 624, 52 N. W. 62. In one Minnesota case a plaintiff was nonsuited on the theory that a railway company is not bound, unless under very special and peculiar circumstances, to remove all the snow from its switch yards; and if it keeps the surface of the snow practically level, and does not allow it to accumulate above the level of the rails, or in dan- gerous ridges or hummocks, or to form dangerous holes, it cannot be charged with negligence; nor is It negligent in failing to cover the snow with ashes or cinders. Fay v. Chicago, St. P. M. & 0. R. Go. (1898) 72 Minn. 192, 75 N. W. 15. But in a ease decided a few months later it was held that the ques- tion as to the negligence of a railroad company in permitting a ridge of ice covered with snow, and about 2 inches higher than the rails, to remain for about a vfeek between the rails of a track in a large and busj^ switch yard^ was for the jury. Rifley v. Minneapo- lis & St. L. R. Go. (1898) 72 Minn. 469, 75 N. W. 704, distinguishing the Fay Case, on the gi'ounds ( 1 ) that more care should be used in securing safe condi- tions in a yard in which a large amount of traffic is handled than one where the amount of traffic is small, and (2) that in the earlier case the place where the plaintiff fell was covered with level snow, with no concealed ridge of ice un- der it. In one case of this type the breach of duty was admitted, but the servant failed to recover on the ground that he appreciated the risk. Way v. Ghicago & N. W. R. Go. (1888) 76 Iowa, 393, 41 N. W. 51 (defective con- dition was the accumulation of ice on a track where car repairers worked). ^ Pool V. Ghicago, M. & St. P. R. Go. (1881) 53 Wis. 657, 11 N. W. 15 (the contention was that the road was not defective, because the plank would in no way interfere with the passage of trains) . " Grant v. Raleiqh & G. R. Go. (1891) 108 N. C. 462, 13 S. E. 209 (instruction to opposite effect rightly refused). = So held in Malott v. Laijfmon (1899) 89 111. App. 178 (a mail crane became so loose on its foundation that it leaned towards the track). § 87] DECISIONS AS TO VARIOUS APPLIANCES. 223 struction near the track can be excused after a sufficient period has elapsed to charge the company with notice of its position.* See chapters x., si.^ post. Most of the courts which have dealt with such facts also hold that a railway company is negligent if movable objects which have no con- nection, or only an indirect connection, with the operation of the road, are left so close to the track that the safety of train hands is endangered.® The Massachusetts doctrine, however, seems to be that such ob- structions are an ordinary incident of railway work, and that the train hands are presumed to be able to protect themselves against the resulting risks.® c. Ahove the irach. — All courts, whether they do or do not regard as culpable the maintenance of overhead structures so low as to en- danger train hands, hold a company liable if those structures cause an injury while they are abnormally low.''^ 87. Railway fences.— (See also § 72, supi-a.) — Whether there is or * Chicago £ N. W. R. Go. v. Delaney was not regarded as implying negligence (1897) 169 111.581,48 N. E. 476 (a piece is, however, clearly indicated by the re- ef drawbar lying on the track struck mark of the court that, while a rail- the pilot of the engine, and was thrown road corporation should keep its freight against the footboard, breaking it). yard in such condition that its em- ' Qaffney v. 'New York & N. E. R. Go. ployees may do their work in reasonable (1887) 15 R. I. 456, 7 Atl. 284 (lumber safety, there must sometimes be piles, pile) ; Bessex v. Ghicago & W. W. R. as of rails, or sleepers, near its track, Co. (1878) 45 Wis. 477 (lumber pile) ; and it cannot be expected to keep the Smith V. Winona £ St. P. R. Go. (1889) yard in such condition that they may 42 Minn. 87, 43 N. W. 968 (stone pile) ; themselves neglect ordinary precaution. Meredith v. Cranberry Coal & I. Co. ''Warden v. Old Colony R. Co. (1884) (1888) 99 N. C. 576, 5 S. E. 659 (a 137 Mass. 204 (a rope supporting tell- wood pile seems to be regarded as im- tale was defective, and allowed it to porting negligence ; but the opinion does sink); Wallace v. Central Vermont R. not contain a direct affirmation of this Go. (1893) 138 N. Y. 302, 33 N. E. 1069 doctrine) ; Poicers v. Thayer Lumber (telltale out of order) ; Bines v. 'Neio Co. (1892) 92 Mich. 533, 52 N. W. 937 Yorh C. & H. R. R. Co. (1894) 78 Hun, (tree). But no negligence can be in- 239, 28 N". Y. Supp. 829 (same facts); ferred from the mere fact that a tree Ohio, I. d W. R. Go. v. Johnson (1889) was left standing close to the track on 31 111. App. 183 (brakeman killed by a a road under construction. Manning v. water-supply pipe, which, by reason of Chicago & W. M. R. Co. (1895) 105 defective appliances for holding the Mich. 260, 63 N. W. 312. pipe in position when not in use, had " In Thompson v. Boston & M. R. Go. swung around over the train upon which (1891) 153 Mass. 391, 26 N. E. 1070, deceased was riding) ; Gates y. Chiengo, where a brakeman in swinging out along M. & St. P. R. Go. (1892) 2 S. D. 422, the side of a car after setting a brake 50 N. W. 907 (arm of derrick, not he- struck against a pile of rails, it was ing properly secured, swung over the held that he could not recover, mainly track) ; Bolden v. Fitchburg R. Co. for the reason that, knowing that there (1880) 129 Mass. 268, 37 Am. Rep. 343 was a possibility that such obstructions (a derrick was thrown down by an might exist, he negligently failed to earth slide, and so brought one of the look out for the pile in question. That guys low enough down to sweep a brake- tbe majntenance of such obstructions man off a ear), 224 MASTER AND SERVANT. [chap. VIIT. not any common-law duty to fence a track, it would seem that a rail- way company must at least exercise due care to see that a fence which has been erected is kept in good condition. The position taken is, that a servant working on a fenced line only assumes the risks inci- dent to its operation while the fence is in good condition.-' 88. Rolling stock on railways.— (See also §§ 13, 74, supra.) — Negligence is inferable where a railway company uses rolling stock defective in the respects indicated by the subjoined note.^ ^ Quill V. Bouston & T. G. R. Go. (1898; Tex. Civ. App.) 46 S. W. 847, Writ of Error dismissed in (1898) 92 Tex. 335, 48 S. W. 168, distinguishing the cases in which no fence had even been erected. The same view was apparently taken in three other cases, as the only points discussed were whether the defenses of assumption of risks or contributory negligence were available to the defend- ant under the circumstances. Siceeney V. Gentral P. R. Go. (1880) 57 Gal. 15; Magee v. North Pacific Coast R. Go. (1889) 78 Cal. 430, 21 Pac. 114; Deicey V. Chicago & N. W. R. Go. (1871) 31 Iowa, 373. ^ ( 1 ) Defective locomotives. — ^Aetions have been maintained where the follow- ing parts were in bad order: Boilers. Texas & P. R. Go. v. Barrett (1895) 14 C. C. A. 373, 30 U. S. App. 196, 67 Fed. 214, Affirmed in (1897) 166 U. S. 617, 41 L. ed. 1136, 17 Sup. Ct. Rep. 707; Baxter v. Chicago & N. W. R. Go. (1899) 104 Wis. 307, 80 N. W. 644; Atchison, T. S 8. F. R. Co. v. Holt (1883) 29 Kan. 149; Gone v. Delaware, L. & W. R. Go. (1880) 81 N. Y. 206, 37 Am. Rep. 491; hake Erie & W. R. Go. V. McHenry (1894) 10 Ind. App. 525, 37 N. E. 186; Eirlcpatrich v. New York C. & H. R. R. Co. (1879) 79 N. Y. 240; Keegan v. Western R. Corp. (1853) 8 N. Y. 175, 59 Am. Dec. 476; Flynn v. Wabash, St. L. d P. R. Co. (1885) 18 111. App. 235; Chicago & A. R. Co. v. DuBois (1896) 65 111. App. 142. Wheels. Bridges v. St. Louis, I. M. & S. R. Co. (1879) 6 Mo. App. 389. Levers. Burlington & M. R. Co. v. Wallace (1889) 28 Neb. 179, 44 N. W. 223. Drawbars. Ousley v. Central R. & Bkg. Co. (1891) 86 Ga. 538, 12 S. E. 938; Louisville, N. A. & G. R. Co. v. Bates (1896) 146 Ind. 564, 45 N. E. 108; Norfolk & W. R. Co. v. Nunnally (1892) 88 Va. 546, 14 S. E. 367. Footboard. O'Uellia V, Kansas City, St. J. eg 0. B- R. Co. (1893) 115 Mo. 205, 21 S. W. 503. The case is for the jury where no proper headlight was provided for the tender of an engine which was backing. Southern P. Go. v. Yea/rgin (1901) 48 C. C. A. 497, 109 Fed. 436. Other cases in which the liability of the defendant for defective locomotives was recognized are Wabash & W. R. Co. V. Morgan (1892) 132 Ind. 430, 31 N. E. 601; Durgin v. Munson (1864) 9 Allen, 396, 85 Am. Dec. 770; Atchison, T. d S. F. R. Co. V. Holt (1883) 29 Kan. 149; Geary v. Kansas City, 0. d S. R. Co. (1897) 138 Mo. 251, 39 S. W. 774; McCauley v. Southern R. Go. (1897) 10 App. D. C. 560; Chicago d A. R. Go. v. Shannon (1867) 43 111. 338, 339; Dunn v. New York, N. H. & B. R. Go. (1901) 46 C. C. A. 546, 107 Fed. 666 (nonsuit held erroneous where a brakeman work- ing at the switching of ears with a road engine not provided with a hand-hold such as is ordinarily used on yard en- gines took hold of tile figure plate, and it gave way ) . (2) Defective freight cars. — Injuries caused by the condition of the couplings were declared actionable in Powers v. Neio York C. d B. R. R. Go. (1891) 60 Hun, 19, 14 N. Y. Supp. 408, AffJrmed in 128 N. Y. 659, 29 N. E. 148; Brad- shaw V. Chicago, R. I. d P. R. Co (1897) 58 Kan. 618, 50 Pac. 876; Munch V. Great Northern R. Co. { 1898 ) 75 Minn. 61, 77 N. W. 541 ; Bowers v. Union P. R. Go. (1885) 4 Utah, 215, 7 Pac. 251; Norfolk d W. R. Go. v. Am- pey (1896) 93 Va. 108, 25 S. E. 226; Illinois G. R. Co. v. Barris (1894) 53 111. App. 592; Fordyce v. Yarborough (1892) 1 Tex. Civ. App. 260, 21 S. W. 421; Denver, T. d G. R. Go. v. Simpson (1891) 16 Colo. 55, 26 Pac. 339; Trox- ler V. Southern R. Go. (1898) 122 N. C. 902, 30 S. E. 117; Illinois S. R. Co. \: Barslow (1901) 94 111. App. 206: Mo- Knight V, Chicago, M. d St. P. R. Co, § 88] DECISIONS AS TO VAMOUS APPLIANCES. 225 (1890) 44 Minn. 141, 46 N. W. 294 Co. (1890) 81 Mich. 423, 46 N. W. Ill; (ragged edge on a drawhead caught the Myers v. Erie B. Go. (1899) 44 App. clothing of a brakeman). The follow- Div. 11, 60 N. Y. Supp. 422; Louisville, ing oases recognize the liability which a, N. A. & G. R. Go. v. Buck (1888) 116 company incurs when couplings are de- Ind. 566, 2 L. R. A. 520, 19 N. E. 453 ; feotive in such a manner that the cars Prosser v. Montana G. R. Go. (1895) to be coupled are not kept at a safe dis- 17 Mont. 372, 30 L. R. A. 814, 43 Pae. tance apart. Seese v. Northern P. R. 81; Chicago <& N. W. R. Co. v. Taylor Co. (1889) 39 Fed. 487; King v. Ohio d (1873) 69 111. 461, 18 Am. Rep. 626; M. R. Co. (1882) 11 Biss. 362, 14 Fed. Texas P. R. Co. v. White (1891) 82 211 ; St. Louis, I. M. & 8. R. Go.Y. Hig- Tex. 543, 18 S. W. 478 (brakeman's gins (1890) 53 Ark. 458, 14 S. W. 653; foot was caught by a drooping brake). Elgin, J. <& E. R. Go. v. Eselin (1896) A verdict for the plaintiff will not be 68 111. App. 96; Louisville & N. R. Co. set aside where a servant was killed by V. Foley (1893) 94 Ky. 220, 21 S. W. the failure of air brakes to work, be- 866; Karrer v. Detroit, O. PL. & M. R. cause of a leak in a steam pipe in the Go. (1889) 76 Mich. 400, 43 N. W. 370 smoke box. Pierson v. New York, N. (draw-bar had dropped down) ; Brewer E. & E. R. Go. (1900) 53 App. Div. V. Flint & P. M. R. Go. (1885) 56 Mich. 363, 65 N. Y. Supp. 1039. 620, 23 N. W. 440 (similar facts) ; Ladders. Richmond & D. R. Co. v. Bender v. St. Louis & 8. F. R. Go. Williams (1889) 86 Va. 165, 9 S. E. (1897) 137 Mo. 240, 37 S. W. 132; 990; Richmond d D. R. Go. v. Moore OottUeb Y. New York, L. E. <& W. R. Go. (1883) 78 Va. 93; Goodman v. Rich- (1885) 100 N. Y. 462, 3 N. E. 344; mond <& D. R. Co. (1886) 81 Va. 576; Evans v. Chamberlain (1892) 40 S. C. Jones v. New York C. & E. R. R. Go. 104, 18 S. E. 213; Richmond & D. R. (1882) 28 Hun, 364; Lake Shore & M. Co. V. George (1891) 88 Va. 223, 13 S. 8. R. Go. v. Ryan (1897) 70 111. App. E. 429 ; Chesapeake d 0. R. Co. v. Lash 45 ; Thompson v. Great Northern R. Co. (1896; Va.) 24 S. E. 385. The furnish- (1900) 79 Minn. 291, 82 N. W. 637; ing of the crooked link customarily used Missouri, K. & T. R. Go. v. Chambers in coupling cars of different heights is (1897) 17 Tex. Civ. App. 487, 43 S. W. not a sufficient discharge of the com- 1090; Missouri, K. & T. R. Go. v. Miller pany's duty to absolve it from liability (1901; Tex. Civ. App.) 61 S. W. 978. for allowing a foreign car with a bump- Steps. Texas P. R. Go. v. Wisenor er that had sagged to be taken into a (1886) 66 Tex. 674, 2 S. W. 667; Cam- train. Goodrich v. New York C. & E. eron v. Great Northern R. Co. (1898) R. R. Co. (1889) 116 N. Y. 398, 5 L. R. 8 N. D. 124, 77 N. W. 1016 (steps re- A. 750, 22 N. E. 397. moved temporarily from a car). Hand holds. Felton v. Bullard Truss rod. Missouri, K. & T. R. Co. (1899) 37 C. C. A. 1, 94 Fed. 781; v. Murphy (1898) 59 Kan. 774, 52 Pac. Brann v. Chicago, R. I. & P. R. Co. 863 (rod broke and caught switchman, (1880) 53 Iowa, 595, 36 Am. Rep. 243, and threw him under the wheels). 6 N W. 5; Settle v. St. Louis & S. F. Floor. Chicago & E. R. Co. v. Bran- R. Co. (1895) 127 Mo. 336, 30 S. W. ywn (1894) 10 Ind. App. 570, 37 N. E. 125; Eayden v. PUit (1895) 84 Hun, 190. 487 32 N. Y. Supp. 1144; Thompson Wheels. Union P. R. Go. v. Daniels V. Great Northern R. Go. (1900) 79 (1894) 152 U. S. 684; Union P. R. Co. Minn. 291, 82 N. W. 637. v. Snyder, 38 L. ed. 597, 14' Sup. Ct. Brakes. Northern P. R. Co. v. Rep. 756, Affirming (1890) 6 Utah, Charless (1892) 2 C. C. A. 380, 7 U. S. 357, 23 Pac. 762. App 359 51 Fed. 562; Mexican C. R. Stakes. Jones v. Chicago, St. P. M. Cofv. Jones (1901) 48 C. C. A. 227, 107 d 0. R. Go. (1900) 80 Minn. 488, 49 L. Fed 64 ; Central TruM Co. v. Texas d R. A. 640, 83 N. W. 446 ; Ryan v. New 8t L R Co. (1887) 32 Fed. 448; Bail- York C. d E. R. R. Go. (1895) 88 Hun, ey V Rome W. d 0. R. Go. (1893) 139 269, 34 N. Y. Supp. 665; Bushby v. N Y 302 34 N. E. 918; Chicago, B. d New York, L. E. d W. R. Co. (1887) Q. R. Go. V. Kellogg (1898) 55 Neb. 107 N. Y. 374, 14 N. B. 407. 748 76 N. W. 462 (First Hearing, 54 (3) Defective hand cars. — Action held Neb 127 74 N. W. 454) ; Eickman r. maintainable in Indiana, I. d I. R. Co. Missouri P. R. Co. (1886) 22 Mo. App. v. Snyder (1895) 140 Ind. 647, 39 N. 344- Mad River d L. E. R. Go. v. Bar- E. 912; Solomon R. Go. v. Jones (1883) 6er'(1856) 5 Ohio St. 541, 67 Am. Dec. 30 Kan. 601, 2 Pae. 657; Norton v. Lou- 312- Morton v. Detroit, B. G. & A. R. isville & N. B. Go. (1895) 16 Ky. L. Vol. I. M. & S.— 15. 226 MASTER AND SERVANT. [chap. vm. 89. Vehicles other than those used on railways. — The action has been sustained Avhere the dangerous instrumentality was a defective brake ;^ a defective linchpin f a defective flange in a "wheel. ^ 90. Appliances designed to support or lift heavy objects. — The ac- tion has been held maintainable where the cause of the injury was the defective condition of ropes and cables/ chains,^ hooks,^ eye- bolts,* rods designed fco support a certain weight,'' jackscrews," pul- Rep. 864, 30 S. W. 599; Glowers v. Minn. 310, 34 N. W. 113 (a frayed wire Wabash, St. L. iC- P. B. Co. (1886) 21 rope supporting a pile-driver hammer Mo. App. 213 {lever of hand car cracked dangerous to touch with a mittened at a place where it was covered by the hand when it was in motion). iron at the shoulder) ; Gulf, G. & S. F. ^Murphy v. Phillips (1876) 24 Week. R. Go. V. Silliphant (1888) 70 Tex. 623, Rep. 647, 35 L. T. N. S. 477; Whitelaw 8 S. W. 673 (section hand injured by the v. Moffat (1849) 12 Sc. Sess. Cas. 2d giving way of the lever of a hand car), series, 434; Hackett v. Middlesex Mfg. (4) Defective street cars. — Recovery Go. (1869) 101 Mass. 101; Tangney v. was allowed in Beardsley v. Minneapolis J. B. Wilson & Co. (1891) 87 Mich. 453, Street R. Co. (1893) 54 Minn. 504, 56 49 N. W. 666; Honiflus v. Chambers- N. W. 176 ("bucking" car); Murdoch hurg Engineering Co. (1900) 196 Pa. V. Oakland, S. L. & H. Electric R. Co. 47, 46 Atl. 259; Vincent v. Alden (1900) 128 Cal. 22, 60 Pac. 469 (ear (1901) 62 App. Div. 558, 71 N. Y. Supp. started with a lunge). 149 (some of the links here had been ^ Mahood v. Pleasant Valley Goal reduced about a, third in thickness); Co. (1892) 8 Utah, 85, 30 Pac. 149; Consolidated Ice Mach. Co. v. Kiefer Matthews v. M'Donald (1865) 3 Sc. (1888) 26 111. App. 466; Hoffman v. Sess. Cas. 3d series, 506. Dickinson (1888) 31 W. Va. 142, 6 S. ' Boyce v. Schroeder (1898) 21 Ind. E. 53. Evidence that a chain broke un- App. 28, 51 N. E. 376. . der a sti-ain only one tenth of that ^ Byrne y. Eastmans (7o. (1900) 163 N. which, according to expert testimony, Y. 461, 57 N. E. 738, Reversing (1898) one of that size should bear, if made of 27 App. Div. 270, 50 N. Y. Supp. 457. the best material, will justify a conelu- '■ Cunard S. S. Co. v. Carey ( 1886 ) sion by a, jury that the chain was de- 119 U. S. 245, 30 L. ed. 354, 7 Sup. Ct. fective. De Graff v. New York 0. & E. Rep. 1360; Senior v. Ward (1859) 1 R. Go. (1879) 76 N. Y. 125. "The El. & El. 385, 28 L. J. Q. B. N. S. 139, amount of strain spoken of [by the ex- 5 Jur. N. S. 172, 7 Week. Rep. 261; perts] is contemplated to be applied Perry v. Ricketts (1870) 55 III. 234; when the chain is new, either by hy- The Phoenix (1888) 34 Fed. 760; Wood draulic pressure, or a dead weight, and V. Pitfield (1887) 26 N. B. Rep. 210; not in the mode in which the chain is The Carolina (1886) 30 Fed. 199; The used on a car. Its use would naturally Ethelred (1899) 96 Fed. 446; Earmi- weaken its power of resistance, and gan v. Union Warehouse Co. (1896) 3 there is no obligation to keep it up to App. Div. 618, 73 N. Y. S. R. 753, 38 its maximum strength, and hence the N. Y. Supp. 272 ; Ocean S. S. Go. v. Mat- breaking might have been from natural thews (1890) 86 Ga. 418, 12 S. E. 632; and unforeseen causes. But these were McGuigan v. Beatty (1898) 186 Pa. considerations for the jury." 329, 40 Atl. 490; Briioe V. BeaH (1897) ^ Spicer v. South Boston Iron Go 99 Tenn. 303, 41 S. W. 445; Baker v. (1885) 138 Mass. 426. Allegheny Valley R. Go. (1880) 95 Pa. * Painton v. Northern C. R Co 211, 40 Am. Rep. 634; Yaw v. Whit- (1880) 83 N. Y. 7; Killman v. Roler't more (1901) 167 N. Y. 605, 60 N. E. Palmer & Son Shipiuilding & Marine R. 1123, AiErming (1899) 46 App. Div. Go. (1900) 42 C. 0. A. 281, 102 Fed. 422, 61 N. Y. Supp. 731 (cable support- 224; Doyle v. White (1896) 9 App. ing derrick broke) ; The Persian Mon- Div. 521, 35 N. Y. Supp. 760 41 N Y arch (1892) 49 Fed. 669 (wire rope Supp. 628. used as a guy of a derrick gave way); ^ Moynihan v. Eills Co. (1888) 146 Ashley Wire Go. v. Mercier (1895) 61 Mass. 586, 16 N. E. 574. 111. App. 485 (similar accident) ; Steen "Kennedy v. Chicago, M. & St P R V. St. Paul & D. R. Co. (1887) 37 Co. (1894) 57 Minn. 227, 58 N. W. 878. §§ 91,92] DECISIONS AS TO VARIOUS APPLIANCES. 227 ]eys and their attachments,^ jiggers, — contrivances for loading v/heels on a railway car,^ — ^handles on boxes.® 91. Elevators. — (See also § 75, supra.) — An employer may be held liable if the safety devices which he is bound to provide for an ele- vat-or designed for the use of his servants prove defective.-' The em- ployer must also respond in damages if an elevator, which is either constructed specially for the conveyance of the servants, or which, though constructed primarily for the carriage of freight, is also used, with his acquiescence, for the conveyance of servants, is in any other way abnormally dangerous to use.^ 92. Vessels subjected to the pressure of steam. — (See also § 8S, supru.) — A servant may maintain an action for injuries caused by '' Romonai Oolitic Stone Co. v. Phil- lips (1894) 11 Ind. App. 118, 39 N. E. 96. ^Kain v. Smith (1882) 89 N. Y. 375, AfErming 25 Hun, 146 (parts were of unequal length, where they should have been equal; joints were loose and in- firm, where they should have been tight and steady; and grip Iron was so blunted that it would not hold). "Sim V. Dominion Fish Co. (1901) 2 Ont. L. Rep. (C. A.) 69. ^ Biddiscombe v. Cameron (1900) 161 N. Y. 637, 57 N. E. 1104, Affirming (1898) 35 App. Div. 561, 55 N. Y. Supp. 127; Baltimore Boot & Shoe Mfg. Co. V. Jamar (1901) 93 Md. 404, 49 Atl. 847. ^ As where it suddenly jumps up sev- eral inches after being brought to a level with a floor. Meyers Sons v. Fallc (1901) 99 Va. 385, 38 S. E. 178. Or the supporting cable or chain is defect- ive. Bruce v. Beall (1897) 99 Tenn. 303, 41 S. W. 445; Mulvey v. Rhode Is- land Locomotive Works (1885) 14 R. I. 204; Brydon v. Stewart (1855) 2 Macq. H. L. Cas. 30; Bucher v. PryiUl (1897) 19 App. Div. 126, 45 N. Y. Supp. 972. Or the spring intended to close an elevator gate automatically does not act properly. Larkin v. Washington Mills Co. (1899) 45 App. Div. 6, 61 N. Y. Supp. 93. Or the cage runs so loose- ly on the guides that the catches act so as to stop it with dangerous sudden- ness Mangum v. Bullion B. & C. Min. Co. (1897) 15 Utah, 534, 50 Pac. 834. Or the brake controlling the descent of the hoisting apparatus becomes less ef- fective by wear, and fails to perform its functions. Myers v. Eudson Iron Co. (1889) 150 Mass. 125, 22 N". E. 631. Where it appears that a scrubbing girl was obliged, in her work, to use a hotel freight elevator, which was a movable platform with iron guards on the sides which did not reach to the floor, but left space enough for a foot to pass under them, and at the time of the accident it had swayed to one side and tilted over, and she was thrown down, and her foot passed under the guard, and she was injured, the defendant is liable, the elevator being unfltted for the safe transportation of human beings. Mc- Kinnie v. Kilgallon (1887; Pa.) 11 Atl. 614. For other cases where injuries caused by defective elevators were held actionable, see Phillip v. Dixon (1852) 14 Sc. Sess. Cas. 2d series, 953; White- law V. Moffatt (1849) 12 Sc. Sess. Cas. 2d series, 434; Ross v. Cross (1890) 17 Ont. App. Rep. 29; McGregor v. Rcid, M. d Co. (1899) 178 111. 464, 53 N. E. 323; Union Show Case Co. v. Blindauer (1898) 75 111. App. 358; Wilson v. Wil- liams (1900) 22 Ky. L. Rep. 567, 58 S. W. 444; Bartley v. Trorlicht (1892) 49 Mo. App. 214; Derwin v. Herrman (1890) 31 N. Y. S. R. 179, 9 N. Y. Supp. 722; Leland v. Eearn (1900) 49 App. Div. Ill, 63 N". Y. Supp. 204; Hart v. Naumherg (1888) 50 Hun, 392, 3 N. Y. Supp. 227 ; Findlay Breinng Co. v. Bauer (1893) 50 Ohio St. 560, 35 N. E. 55; Johnson v. Armour (1883) 18 Fed. 490; Weiden v. Brush Electric Light Co. (1889) 73 Mich. 268, 41 N. W. 269 (the wire rope of an elevator had be- come broken and ragged) ; Anderson v. Hayes (1899) 101 Wis. 519, 77 N. W. 903. 228 MASTER AND SERVANT. [chap. vni. the defective condition of a boiler,^ or of a valve,^ or of the steam drum supplied by the boiler,^ or of a barrel which is cleaned by turn- ing steam into it.* That an exhaust steam pipe was turned so as to point in a dan- gerous direction warrants a finding of negligence.® 93. Miscellaneous appliances. — Employers have been held liable for injuries caused by the softness of the timber furnished for a maul- head ;^ by shears with a cracked surface f by a defective rollway and defective chock-blocks in a saAvmill ;" by the defective quality of the spurs furnished for climbing electric-light poles.* 94. Imperfect attachment of parts of apparatus. — (See also § 9Y, note 1, subd. (1), infra.) — ISfegligence is inferable where the means used for holding together the several parts of instrumentalities are so defective that one of these parts is detached, or otherwise changes its position, to the injury of the servant.-' '■Lehigh T alley Goal Co. v. Kiszel (1897) 25 C. C. A. 566, 51 U. S. App. 265, 80 Fed. 470; Qlosscn v. Oehman (1892) 147 Pa. 619, 23 Atl. 843; Bal- lard V. Hitchcoch Mfg. Go. (1895) 145 N. Y. 619, 40 N. E. 163, Affirming (1893) 71 Hun, 582, 24 K. Y. Supp. 1101 ; Johnson v. Boston & U. Consol. Gopper & 8. Min. Go. (1895) 16 Mont. 164, 40 Pac. 298; Jones v. Malvern Lum- ber Go. (1893) 58 Ark. 125, 23 S. W. 679; Woods v. Chicago & G. T. B. Co. (1896) 108 Mich. 396, 66 N. W. 328; Egan v. Dry Dock, E. B. & B. R. Co. (1896) 12 App. Div. 556, 42 N. Y. Supp. 188. See also cases as to locomotives, in § 88, note 1, subd. (1), supra. 'Hoes V. Ocean 8. 8. Co. (1900) 56 App. Div. 259, 67 N. Y. Supp. 782. 'Re California Nav. & Improv. Go. (1901) 110 Fed. 670. 'Grou-ell v. Thomas (1897) 18 App. Div. 520, 46 N. Y. Supp. 137 (explosion was caused by the insertion of a plug in the vent ) . ''Russell V. Pacific Can Co. (1897) 116 Cal. 527, 48 Pae. 616. ^Daly V. Lee (1901) 167 N. Y. 537, 60 N. E. 1109, Affirming (1899) 39 App. Div. 188, 57 N. Y. Supp. 293. 'Pacheco v. Judson Mfg. Co. (1896) 113 Cal. 541, 45 Pae. 833. 'Foley V. Webster (1892) 2 Brit. Col. 138, Affirmed in 21 Can. S. C. 580. * Indiana Natural & Illuminating Gas Go. V. Marshall (1899) 22 Ind. App. 121, 52 N. E. 232. ' The case has been held to be for the jury where a heavy cylinder fell owing to the giving way of the bolts which kept it in place. Weems v. Mathieson (1861) 4 Maeq. H. L. Cas. 215. Where a pin securing a tackle block to the mast of a, derrick worked out, and al- lowed the block to fall on plaintiff. Houston V. Brush (1894) 66 Vt. 331, 29 Atl. 383. Where the devices by which the arms of a derrick were attached proved defective. Dyer v. Pittsburg Bridge Go. (1901) 198 Pa. 182, 47 Atl. 979; McMahon v. McHale (1899) 174 Mass. 320, 54 N. E. 854; Seandell v. Columbia Constr. Go. (1900) 50 App. Div. 512, 64 N. Y. Supp. 232 ; Richmond d D. R. Go. V. Weems (1893) 97 Ala. 270, 12 So. 186. Where a pin which held the parts of a machine together was defective. Bradbury v. Kingston Coal Co. (1893) 157 Pa. 231, 27 Atl. 400. Where a, pin which prevented a hoisting apparatus from falling out of gear became loose and fell out. Union Bridge Co. v. Teehan (1900) 92 111. App. 259. Where the shackle which held the block of a hoisting apparatus proved inadequate. The Para (1893) 56 Fed. 241. Where a clamp, if it had been made of proper material, would have borne a strain twice as great as that under which it broke. Welsh v. Gronell (1900) 49 App. Div. 203, 63 N. Y. Supp. 44. Where a pump was so illy secured that it fell apart. Stimper v. Fuchs & L. Mfg. Co. (1898) 26 App. Div. 333, 49 N. Y. Supp. 785, Affirmed in 161 N. Y. 636, 57 N. E. 1125. Where §§ 95,96] bECISlONS AS TO VARIOUS APPLIANCES. 229 95. Abnormal movements of machinery. — (See also § Y8, note 1, subds. (4), (12), and § 88, note 1, subd. (1), supra.) — An employer fails in his duty if he allows machinery to fall into such a condition that it is apt to start automatically,^ or some part of it to move fur- ther iu a certain direction than it should do,^ or if it fails to move smoothly.* 96. Changes in the parts of machines. — A servant may recover damages for an injury caused by the removal or alteration of some essential part of a machine, when the danger of rising it is thereby materially increased.^ Hence, whatever doctrine may be entertained as to the existence of a duty on tlie part of the employer to keep dan- geroiis machinery covered (see §§ Y6, 77, supra), the employer is prima facie liable for an injury resulting from the entire or partial removal of a cover which had been provided. The conditions thus created are clearly more dangerous, because misleading, than those to which the servant is exposed when tliere has never been a cover at all. In such cases, therefore, the right to maintain the action is com- plete, and can only be defeated by showing that he understood and deliberately encountered the specific risks arising from the changed circumstances.^ i a heavy piece of shafting fell out of its svipports. CopUJwrne v. Hardy (1899) 173 Mass. 400, 53 N. E. 915. Where a nut which kept an eye bolt in place was missing. Monmouth Min. & Mfg. Go. V. Erling (1894) 148 111. 521, 36 N. E. 117. Where a defect in a water spout used for filling engines, whether caused by the need of having the nuts in the apparatus for lowering and raising it loosened, or from a broken pulley, caused it to fall suddenly after it had been raised. Texas & P. B. Co. v. Grow (1893) 3 Tex. Civ. App. 266, 22 S. W. 928. ' Mooney v. Covnecticut Jiivcr Lum- ber Go. (1891) 154 Mass. 408, 28 N. E. 352; Donahue v. Droivn (1891) 154 Mass. 21, 27 N. E. 675; Blanton v. Bold (1891) 109 Mo. 64, 76, 18 S. W. 1149 (belting was liable to slip, and thus set machinery in motion without a move- ment of the apparatus provided for that purpose) ; Hencke v. Babcock (1901) 24 Wash. 556, 64 Pac. 755; Donovan v. Overman & S. Gordage Go. (1900) 22 Ky. L. Eep. 770, 58 S. W. 798. ' McMillan v. Union Press-Brick Works (1879) 6 Mo. App. 434 (exces- sive depression of a mould plunger on a brick-making machine ) . 'Sinft V. Foster (1896) 163 111. 50, 44 N. E. 837 (the broken tooth of a cog- wheel caused tackle to jerk and throw out a load of lumber which was being hoisted) ; Atchison, T. & 8. F. B. Co. V. McKee (1887) 37 Kan. 592, 15 Pac. 484 (a frame in which a saw was set did not hold it firmly, but allowed it to vibrate, the consequence being that a block of wood was "kicked," and threw the servant's wrist against the saw). ' Plefka V. Knapp-Stout Lumber Go. (1897) 72 Mo. App. 309; Mirick v. Morton (1901) 62 Kan. 870, 64 Pac. 609. ^ Wiiotilla V. Duluth Lumber Co. (1887) 37 Minn. 153, 33 N. W. 551 (covering left off for two weeks) ; Mul- lin V. Northern Mill Co. (1893) 53 Minn. 29, 55 N. W. 1115 (some of cov- ering removed) ; Carver v. Christian (1887) 34 Minn. 397, 26 N. W. 8, 36 Minn. 413, 31 N. W. 457 (similar facts); Mastin v. Levagood (1891) 47 Kan. 36, 27 Pac. 122 (cover left oflf of cogs that were usually covered). 230 MASTER AND SERVANT. [chap. vlii. Still more clearly is negligence inferable where the cover of the machinery had itself become defecti^'e.^ 97. Structures. — (See also § 79, supra.) — Structures are consid- ered to be defective if, either by reason of the bad quality of the ma- terials, or the unskilful manner in v?hich they are put together or secured in their position, they are unable to support the pressures and other strains to v?hich they are subjected, while they are being erect- ed, or after they have been put into use as a part of the master's plant.^ But the right of recovery in cases of this type is greatly ' Kelley v. Silver Spring Bleaching & (2) Posts, poles, etc. — McDonald v. Dyeing Co. (1878) 12 R. I. 112, 34 Am. Postal Teleg. Co. (1900) 22 R. I. 131,46 Rep. 615; Swift d Co. v. Holoubek Atl. 407 (telegraph pole with defective (1901; Neb.) 86 N. W. 900, Reversing cross arm); Essex County Electric Co. judgment in (1900) 60 Neb. 784, 84 N. v. Kelly (1897) 60 N. J. L. 306, 37 Atl. W. 249. 619, Affirmed in 61 N. J. L. 289, 41 Atl. ^(1) Scaffolds, stagings, platforms, 1115 (similar condition); Jarvis v. etc.— RoUrtsv. Smith (1857) 2 Hurlst. 'Northern N. Y. MarUe Co. (1900) 55 & N. 213, 3 Jur. N. S. 469, 26 L. J. Exch. App. Div. 272, 67 N. Y. Supp. 78 (the N. S. 319; Webb v. Rennie (1865) 4 mast of a derrick was composed of rot- Fost. & P. 615; Westland v. Cold Coin ten timber); Trainor v. Philadelphia & Mifies Co. (1900) 41 C. C. A. 193, 101 R. R. Co. (1890) 137 Pa. 148, 20 Atl. Fed. 59; Manning v. Hogan (1879) 78 632 (tall pole not sufficiently guyed); N. Y. 615; Benzing v. Steinway (1886) Riher v. New YorTc, 0. & W. R. Go. 101 N. Y. 547, 5 N. B. 449; Malone v. (1901) 64 App. Div. 357, 72 N. Y. Supp. Bathaicay (1875) 6 Thomp. & C. 1, 3 168 (telegraph pole not properly fixed Hun, 553, Reversed in (1876) 64 N. Y. in the ground) ; McLean County Goal 5, 21 Am. Rep. 573, but not on this point; Co. v. McVey (1890) 38 111. App. 158 Chapman v. Southern P. Go. (1895) 12 (imperfectly secured post in a mine). Utah, 30, 41 Pae. 551; Twomey v. Swift (3) Bridges, gangways, etc. — Buzsell (1895) 163 Mass. 273, 39 N. E. 1018 v. Laconia Mfg. Co. (1861) 48 Me. 113, (hemlock boards supplied in cold 77 Am. Dec. 212; Berwiett v. Standard weather, a time when they are very apt Plate Glass Co. (1893) 158 Pa. 120, 27 to be brittle) ; EaiDorth v. Seevers Mfg. Atl. 874 (a barrier on a plank walk Co. (1892) 87 Iowa, 765, 51 N. W. 68, over a pit not replaced after it had been 62 N. W. 325; Arkerson v. Dennison taken away); Louisville &■ C. Packet (1875) 117 Mass. 407; Eddy v. Aurora Co. v. Samuels (1900) 22 Ky. L. Rep. Iron Min. Co. (1890) 81 Mich. 548, 46 979, 59 S. W. 3 (eight steamboat hands N. W. 17 ; Flynn v. Union Bridge Co. required to go out over a river on a (1890) 42 Mo. App. 529; Johnson v. poplar plank 11 inches wide, 3i inches Bellingham Bay Improv. Go. (1896) 13 thick, and 16 feet long); Lafayette Wash. 455, 43 Pac. 370; Alexander Dye Bridge Go. v. Olsen (1901) 47 C. C. A. Works V. Roufosse (1895) 57 N. J. L. 367, 54 L. R. A. 33, 108 Fed. 335 (un- 700, 32 Atl. 373 (a railing on a plat- safe timbers furnished for a false form gave way); Smizel v. Odanah work). Iron Go. (1898) 116 Mich. 149, 74 N. (4) Ice slide.— Fink v. Des Moines W. 488; Hation v. Hilton Bridge Ice Go. (1892) 84 Iowa, 321, 51 N. W. Constr. Co. (1899) 42 App. Div. 400, 155 ( defective supports ) . 59 N. Y. Supp. 272; Chicago & A. R. (5) Window casing. — Hen-cke v. Ellis Go. V. Maroney (1897) 170 III. 520, 48 (1901) 110 Wis. 532, 86 N. W. 171. N. E. 953, Affirming (1896) 67 111. App. (6) Room built out from the wall of 618; Doyle v. Missouri, K. & T. Trust a factory. — Ryan v. Fowler (1862) 24 Co. (1897) 140 Mo. 1, 41 S. W. 255; N. Y. 410, 82 Am. Dee. 315. Cochran v. Sess (1900) 49 App. Div. (7) Roof.—Garety v. King (1896) 9 223, 62 N. Y. Supp. 1088 (liable to col- App. Div. 443, 41 N. Y. Supp. 633 (serv- lapse) : Lechman v. Hooper (1890) 52 ant fell through skylight while shovel- N. J. L. 253, 19 Atl. 215 (similar ing off the snow) ; Engstrom v. Ashland facts). Iron & 8. Go. (1894) 87 Wis. 166, 58 98] DECISIONS AS TO VAMOUS APPLIANCES. 231 qualified by tlie doctrine to be discussed in a later chapter (xxxii.), as to tlie nonliability of the master for the negligence of servants in executing the details of the work. In designing them he is bound to take into account the action of the elements.^ See, generally, § 141, post. 98. Injuries caused by falling rocks, earth slides, etc. — ISTegligence is inferable where a trench is not adequately shored or sheathed in cases where the nature of the soil which is being excavated requires such a precaution,^ or where the roofs or sides of shafts, passages, tunnels, or entries in mines are in such a condition that they are lia- ble to fall at any moment;^ or where adequate measures are not taken N. W. 241 (refuse had not been cleared away). (8) Stairway or steps. — Ferris v. Hernsheim Bros. (1899) 51 La. Ann. 178, 24 So. 771; Krampe v. St. Louis Brewi/itg Asso. (1894) 59 Mo. App. 277. (9) Floor. — Cooper v. Hamilton Mfg. Co. (1867) 14 Allen, 193; Flyrm v.Har- loio (1892) 46 N. Y. S. R. 872, 19 N. Y. Supp. 705; Kirh v. Scally (1898) 79 111. App. 67; Chicago General R. Co. v. MoNamara (1901) 94 111. App. 188. (10) Covers of dangerous openings. — O'Brien v. Sullivan (1900) 195 Pa. 474, 46 Atl. 130 (opening in floor cov- ered over with a thin packing-box lid, not supported by joists); The Y oxford (1887) 33 Fed. 521 (defective hatch cover gave way under a seaman ) ; W. G. De Pauw Co. v. StuhUefield (1892) 132 Ind. 182, 31 N. E. 796 (covering of trench broke under a heavy wheel). (11) Seat. — Spaulding y. Forbes Lith- ograph Mfg. Co. (1898) 171 Mass. 271, 50 N. E. 543 (liable to tip up when servant's weight came upon it). ' Recovery has been allowed where a roof, not being strong enough to bear the snow which accumulated upon it, broke down and fell on a servant. John- son V. First Nat. Bank (1891) 79 Wis. 414, 48 N. W. 712. And where a rail- way company constructed a signal tower not capable of bearing wind pressures which might be anticipated. Eesketh V. New York C. & B. R. Co. (1899) 37 App. Div. 78, 55 N. Y. Supp. 898. •^Baird v. Reilly (1899) 35 C. C. A. 78, 63 U. S. App. 157, 92 Fed. 884; Kranz v. Long Island R. Co. (1890) 123 NY 1, 25 isr. E. 206; Wanamaker v. Rochester (1892) 44 N. Y. S. R. 45, 17 N. Y. Supp. 321; Schmit v. Gillen (1899) 41 App. Div. 302, 58 N. Y. Supp. 458; Bartholomeo v. McKnight (1901) 178 Mass. 242, 59 N. E. 804; Breen v. Field (1892) 157 Mass. 277, 31 N. E. 1075; Ross v. Shanley (1900) 185 111. 390, 56 N. E. 1105, Affirming (1899) 80 111. App. 144; Lasalle v. Kostka (1901) 190 III. 130, 60 N. E. 72, Affirming (1900) 92 111. App. 91; Ft. Wayne v. Christie (1901) 156 Ind. 172, 59 N. E. 385; Scott V. Springfield (1899) 81 Mo. App. 312 (here blasting close by en- hanced the danger, and made it more obligatory upon the defendant to brace the walls of the trench) ; Van Steen- ivrgh v. Thornton (1895) 58 N. J. L. 160, 33 Atl. 380; Laporte v. Cook (1897) 20 R. L 261, 38 Atl. 700; Finni- ghan v. Peters ( 1861 ) 2 Sc. Sesa. Cas. 2d series, 260. Whether it was negli- gence, under the circumstances, to leave without shoring a trench about 31 feet deep and 4 feet wide is for the jury, where it is dug through hardpan, but the soil has been for some time exposed to the disintegrating effect of water that has percolated through it. Finn V. Cassidy (1901) 165 N. Y. 584, 53 L. R. A. 877, 59 N. E. 311, Affirming (1899) 39 App. Div. 641, 57 N. Y. Supp. 1138. An employer is liable for injuries to a workman engaged in dig- ging a ditch alongside of a timber, by the giving way of the bank from the weight of the timber, where the work was done precisely as it was marked out for such workman to perform, and by proper care and foresight the acci- dent would have been provided against. Texas & P. R. Co. v. French (1893; Tex. Civ. App.) 22 S. W. 866. 2 Union P. R. Co. v. Jarvi (1892) 3 C. C. A. 433, 10 U. S. App. 439, 53 Fed. 65; Consolidated Coal Co. v. Scheiher (1896) 65 111. App. 304; Quincy Coal 232 Master and servant. tcHAP. viti. to protect servants from the dangers created by a bank of earth, gravel, etc., which is in process of being excavated.^ Eut tlie servant's right of recovery for injuries due to negligence of this description is in some courts very considerably qualified by the construction put upon the doctrine that a master is not liable for negligence in the execution of the details of tlie work. See chapter XXXII., post. 99. — by other heavy substances. — An action may be maintained, where, owing to the negligence of the employer, a heavy object is put or left in such a situation that, as a result either of physical laws or of the action of employees which may reasonably be anticipated un- der the circumstances, it is liable to be set in motion, and thus im- peril the safety of persons working under or near it.-^ Co. V. Hood (1875) 77 111. 68; Banley V. California Bridge & Constr. Co. (1899) 127 Cal. 232, 47 L. R. A. 597, 59 Pae. 577 ; Sampson Min. S Mill Co. V. Scliaad (1890) 15 Colo. 197, 25 Pac. 89 (roof not timbered) ; Rogers v. Lei/- den (1891) 127 Ind. 50, 26 N. E. 210; Linton Coal d Min. Co. v. Persons (1896) 15 Ind. App. 69, 43 N. E. 651; Corson v. Goal Hill Coal Go. (1897) 101 Iowa, 224, 70 N. E. 185 (rocks fell on car track and obstructed it) ; Freeman V. San Coulee Coal Co. (1901; Mont.) 04 Pac. 347 ; Kearney Electric Go. v. Laughlin (1895) 45 Neb. 401, 63 N. W. 941 (supports of roof inadequate) ; Tetherton v. United States Talc Co. (1899) 41 App. Div. 613, 58 N. Y. Supp. 55; M'ellston Goal Co. v. Smith (1901) 65 Ohio St. 70, 55 L. R. A. 99, 61 N. E. 143 (roof fell into disrepair, and was brought down by the concussion of a blast) ; Vanesse v. Catsiurg Goal Co. (1893) 159 Pa. 403, 28 Atl. 200; Tri- hay V. Brooklyn Lead Min. Co. (1886) 4 Utah, 468, 11 Pae. 612 (want of prop- er timbering) ; Cunningham v. Union P. R. Co. (1885) 4 Utah, 206, 7 Pac. 795 (pillars supporting roof were cut away till they were smaller than was custom- ary) ; Fowler v. Pleasant Valley Qoal Go. (1898) 16 Utah, 348, 52 Pac. 594; Severance v. Tslew England Talc Co. (1900) 72 Vt. 181, 47 Atl. 833 (mine- owner, when sinking the shaft of a tale mine, failed to take out the mixture of talc and quartz which separated the tale from the adjacent rock) ; Davis v. 'Nut- tallshurg Coal & Coke Co. (1890) 34 W. Va. 500, 12 S. E. 559; Strahlendorf V. Rosenthal (1872) 30 Wis. 674. 'O'Driscoll V. Faxon (1892) 150 Mass. 527, 31 N. E. 685; Elledge v. Na- tional City & 0. R. Co. (1893) 100 Cal. 282, 34 Pac. 720; Pantzar v. Tilly Fos- ter Iron Min. Go. (1885) 99 N. Y. 368, 2 N. E. 24; Deppe v. Chicago, R. I. & P. R. Co. (1892) 36 Iowa, 52; Chicago Anderson Pressed Brick Go. v. Sohko- wiak (1892) 45 111. App. 317 (bank was undermined to a greater extent than usual ) . '■ The servant recovered where the in- jury was caused by the fall of the fol- lowing objects: Boards used to cover the coping of a building in course of erection, and left in a loose condition. Whitney & S. Co. v. O'Rourke (1898) 172 111. 177, 50 N. E. 242. A large stone not adequately propped. Blondin V. Oolitic Quarry Go. (1894) 11 Ind. App. 395, 37 N. E. 812. A dress form sometimes exposed to a strong draught on the top of a show case, which was not protected by a railing. Cavanagh V. O'Neill (1900) 161 N. Y. 657, 57 N. E. 1106, Affirming (1898) 27 App. Div. 48, 50 N. Y. Supp. 207. A board laid upon a scaffolding, which was gradually shaken off by the jar of machinery near it. Pilkey v. Harrower (1901) 59 App. Div. 378, 69 N. Y. Supp. 243. A wood- en beam placed in a position of unstable equilibrium. Sackewite v. American Biscuit Mfg. Go. (1899) 78 Mo. App. 144. The frame of a window which fell out while a piece of machinery was being moved through it. Chicago v. Edson (1891) 43 111. App. 417. Stones on a coping, which, not being properly attached, fell off. Gibson v. Sullivan (1895) 164 Mass. 557, 42 N. E. 110. I 69] DECISIONS AS TO VARIOUS APPLIANCES. ^33 If the plant itself, or the things handled or manufactured, are of such a nature, or in a condition so defective, as to create a risk of in- jury from flying or falling bodies, a duty arises to protect the serv- ants, either by altering the plant, or by devising some safeguard which will minimize the perils of the employment as fax as is reason- ably possible.^ Posts not securely braced when girders Mill Co. (1900) 27 Ont. App. Rep. 155. are about to be set on them. Herdler McAleen v. Walter (1901) 3 Misc. 474, V. Buck's Stove & Range Co. (1896) 70 N. Y. Supp. 335 (needle-bar of sew- 136 Mo. 3, 37 S. W. 115. Projecting ing machine was so loose that the needle rocks in a quarry. McMillan Marble struck the side of the plate through Co. V. Black (1890) 89 Tenn. 118, 14 which it passed, the result being that it S. W. 479. A box imperfectly secured, broke, and a fragment lodged in plain- Indiana Stone Co. v. Stewart (1893) 7 tiff's eye); Dempsey v. Saim/er (1901) Ind. App. 563, 34 N. E. 1019. Wheat 95 Me. 295, 49 Atl. 1035 (teeth of a which had accumulated on the side of saw were filed so thin that they broke a bin in which the servant was working, and flew off, when they came in contact McGovern v. Central Vermont R. Go. with the wood) ; Little field v. Edioard (1890) 123 N. Y. 280, 25 N. E. 373. P. Allis Co. (1900) 177 Mass. 151, 58 An accumulation of ice and snow on a N. E. 692 (contrary to the common roof. Dugal v. People's Bank (1899) practice, a piece of iron pipe was used 34 N. B. Rep. 581. Fragments of ore as a buffer to brealv the blows of a dolly in a pile, portions of which were being bar by which bolts were being driven removed. Illinois Steel Co. v. Schy- into a fly wheel) ; Hall v. Emerson- manowski (1896) 162 111. 447, 44 N. E. Stevens Mfg. Co. (1900) 94 Me. 445, 47 876. Bags of cement which slipped Atl. 924 ( gi'ind-stone burst) ; De La down owing to the irregular surface of Verqne Refrigerating Mach. Co. v. Stahl the floor. Page v. 'Naughton (1901) 63 (1900) 24 Tex. Civ. App. 471, 60 S. W. App. Div. 377, 71 N. Y. Supp. 503. 319 (splinter flew ofi' of a cracked and Ties not properly stacked. Texas & N. chipped riveting hammer). The ques- 0. R. Co. V. Echols (1897) 17 Tex. Civ. tion as to whether the cutting of wires App. 677, 41 S. W. 488. A mining com- with nippers is dangerous is for the pany is liable for injury to a workman jury, where there is testimony, al- by the fall of a stone from a slope under though inconsistent and conflicting, that which he is set to work, where he does fragments of wire are lilrely to fly not known that pebbles and stones in off in cutting in that manner. Ward v. unusual numbers have been falling there Odell Mfg. Co. (1898) 123 N. C. 248, 31 during the day, but this fact is known S. E. 495 (a servant was injured in the to the superintendent of the mine, who eye by a flying piece of wire. The con- orders him to work there, without first tention was that defendant was negli- having the stones raked off, or taking gent in allowing the wire to be cut close any other precautions to prevent aoci- to the passway used by employees), dents. Deiceese v. Meramec Iron Min. The master's liability is for the jury Co. (1895) 128 Mo. 423, 31 S. W. 110, where proper arrangements are not Affirming, without comment (1893) 54 made to prevent the workmen on the Mo. App" 476. It has been held not to lower floors of a building in course of be negligent to pile boards of unequal erection from being struck by heavy ar- length so that the ends are even on the tides falling from the upper floors, face of the pile, and they project over Pioneer Fireproof Constr. Co. v. Howell each other on the back of the pile. (1901) 189 111. 123, 59 N. E. 535. Ev- Wetherbee v. Partridge (1900) 175 idence tending to show that deceased Mass. 185, 55 N. E. 894. was killed, while mixing mortar in a 'Richlands Iron Co. v. Elkins (1893) cellar, by the falling of some hard sub- 90 Va. 249, 17 S. E. 890; Smith v. stance from the upper portion of the Lidgertcood Mfg. Co. (1900) 56 App. building, and that there was no secure Div. 528, 67 N. Y. Supp. 533; M'Guire covering to protect persons required to V. Cairns (1890) 5 So. Sess. Cas. 4th prepare such mortar, is sufficient to sus- series, 540; Choate v. Ontario Rolling tain a verdict that the covering was de- 234 MASTER AND SERVANT. [chap. VIII. 100. TTnguarded openings. — (See § 80, supra.) — For injuries caused by unguarded and uncovered openings of a merely temporary nature, a servant would doubtless be held, in every jurisdiction, en- titled to recover damages, irrespective of the doctrine vs^hich happens to prevail respecting the master's right to maintain such openings as a permanent part of his arrangements.-^ But the action has some- times failed in cases of this class on the ground that the conditions were incidental to the work in progress," or justified by the usages of the business.^ fective, and that defendant had been neg- ligent. Ford V. Lyons {1886) 41 Hun, 512. Whether the defendant was negligent in not providing a proper covering for the workmen engaged in digging a trench in the basement of a building, the walls of which were being taken down, is a, question for the jury, where the only protection was a platform on to which the bricks were discharged as they were detached, and this did not extend up to the walls. Witkouski v. George W. Carter & Sons Co. ( 1901 ) 60 App. Div. 577, 70 N. Y. Supp. 232. Negligence is not inferable, where the ladder well- hole and the elevator wellhole are both protected by planking for the purpose of preventing the fall of materials in a building under erection, this being the usual method of safeguarding the work- men. Van Orden v. Aclcen (1898) 28 App. Div. 160, 50 N. Y. Supp. 843. The question whether the failure to cross bolt the "head block" of a pile driver employed in pulling piles was negli- gence which rendered the master liable for the death of an employee from being struck by a piece of the block split off while a pile was being pulled, was held to be for the jury, upon the testimony of a witness who constructed the pile driver that he considered it unsafe to draw piles with the machine without such cross bolting, and of another ex- pert that he always used cross bolts for safety, and evidence that of the six pile drivers in the harbor at the time of the accident all except the one in question were cross bolted. MoAlpine v. Laydon (1896) 115 Gal. 68, 46 Pac. 865. See also the cases cited in note 4, § 207. ' Frye v. Bat}i Gas & Electric Co. (1900) 94 Me. 17, 46 Atl. 804 (hole left open in front of the boiler of which the plaintiff was fireman ) . In Hogan v. Smith (1890) 31 N. Y. S. R. 798, 9 N. Y. Supp. 881, recovery was allowed where the servant, who was standing on a platform of planks laid upon the beams of the orlop deck of a steamer, was struck by a descending sling of flour bags, and thrown into the hold through an opening which was usually kept covered. The case is for the jury, where it is averred that the plaintiff's decedent was killed by falling into an open tank on a ship under construction, and that the tank was usually covered and lighted, but was neither covered nor lighted at the time when the accident occurred. Jamieson v. Russell (1892) 19 Sc. Sess. Gas. 4th series, 898, dis- tinguishing Forsyth v. Bamage (1890) 18 Se. Sess. Gas. 4th series, 21, on the ground that the facts there disclosed nothing more than an ordinary risk of the woi'k in which the injured servant was engaged, and that no such rule had been there laid down as that a workman on a ship under construction can never recover damages for any accident caused by falling into an unfenced place. "In Wannamaker v. Burke (1886) 111 Pa. 423, 2 Atl. 500, the court, while conceding that, if the hole in question had been in the middle of the room, near a passageway, or where persons were accustomed to pass and repass in the regular course of business, it would have been, perhaps, a question for the jury whether leaving it uncovered, or insufficiently protected, even for a short space of time, was not negligence, but denied that there could be any recovery for an injury caused by a hole in the floor on the extreme side of the build- ing, within 1 inch of the wall, outside of the ordinary' walks of anyone, which had always been carefully guarded un- til the work of making certain altera- tions rendered it necessary to take the guards away; which was being used constantly during the alterations to get rid of the sweepings; which was only open for from two to four days while § lOOa] DECISIONS AS TO VARIOUS APPLIANCES. 235 100a. Surface of paths, floors, etc. — In some cases the servant has been allowed to recover for the reason that the surface on which he was required to stand or walk, while engaged in the performance of his duties, or while going to or returning from the place of work, fur- nished an unsafe footing. -"^ In others the position taken was that the conditions created a normal and visible risk, and therefore implied no negligence as regards employees." -An employer is liable if the ways used by his servant, either in driving or walking, are encumbered with obstructions which render them abnormally dangerous.* the alterations were in progi^ss, and footing and let it fall on the plaintiff) ; only open then when not in actual use; American Dredging Go. v. Walls (1898) which was intended to be, and was, per- 28 0. C. A. 441, 55 U. S. App. 460, 84 manently covered as soon as the altera- Fed. 428 (want of cleats on an inclined tions were finished. "The defendants," table from which machinery had to be it was said, "could not have anticipated oiled) ; Armour v. Czischki (1895) 59 such an accident as this as likely to 111. App. 17 (a servant slipped on glue flow from the condition of the hole at scattered on the floor, and fell through that time, and they are not to be held an unguarded opening into a. crushing to a rule which would prevent the pos- machine). See also Smith v. Peninsu- sibility of an accident. If they took rea- lar Car Worlds (1886) 60 Mich. 501, 27 sonable care to provide a safe room for N. W. 662, the facts of which are stated their employees to work in, it was all the in § 10.3, note 6 infra; Fitzgerald v. law requires. It would be unreasonable Connecticut Eiver Paper Co. (1891) 155 to hold them to the same degree of strict- Mass. 155, 29 N. E. 464 (ice-covered ness during alterations to the building steps). as might be required after such altera- It is not negligence to leave all the tions were completed. The fact that al- hatchways of a vessel open while it is terations were being made in the pres- being loaded, although some of them are ence of the employees was notice to not constantly in use, especially where them of the possibility of danger of the cargo consists of several different some sort, and of the necessity of exer- kinds of goods, and it cannot be known cising greater caution." when any particular one of the hatch- ' In The Louisiana (1896) 21 CCA. ways may be required. Tully v. 'New 60, 41 U. S. App. 324, 74 Fed. 748, it York & T. 8. 8. Co. (1896) 10 App. Div. was held that a vessel was not liable 463, 42 N. Y. Supp. 29. for an injury to a stevedore who walked ^ Feely v. Pearson Cordage Co. into an open hatchway, where it is not (1894) 161 Mass. 426, 37 N. E. 368; customary to protect or guard such Murphy m. American Rubier Co. (1893) hatchways, and it is usual to leave them 159 Mass. 266, 34 N. E. 268. open till the hold is fully stored. Com- " The driver of a municipal fire engine pare Smith v. Occidental & 0. 8. S. Go. may recover for injuries caused by ob- (1893) 99 Cal. 462, 34 Pac. 84, where structions in the street. Farley v. New the ease turned on the question whether York (1897) 152 N. Y. 222, 46 N. E. the servant had constructive notice of 506, Reversing (1896) 9 App. Div. 536, the fact that the hatchway was open on 41 N. Y. Supp. 622 (obstructions in such occasions as that on which he was street endangering driver of fire en- injured gine). A gangway, along which the MVefter Wagon Co. v. KcU (1892) plaintiff's duty requires him to carry 139 111. 644, 29 N. E. 714 (floor worn molten metal, obstructed with articles smooth) • New Orleans Ice Co. v. O'Mal- along its sides, is in a condition which leu (1899) 34 C C A. 233, 92 Fed. 108 implies negligence. Bogenschutz v. (fellow servants, having nothing to Smith (1886) 84 Ky. 330, 1 S. W. 578. walk on but slippery beams, while they See also § 105, note 1, ad finem. were shifting heavy tackle, lost their SSd Master aistd smvant . tcHAf. Vttl. 101. Conditions exposing a servant to risk of injury from fire. — Injuries caused by fire are actionable where they are due to condi- tions which, either in consequence of the manner in which the busi- ness is carried on, or of an intrinsic defect in an instrumentality, create abnormal perils.-' 102. — from currents of electricity. — ISTegligence is inferable, where a wire carrying a current of electricity is not properly insu- lated so that servants who have to handle or work near it may do so without danger.^ The want of such insulation is also culpable where the wire is so strung that it may come into contact Avith another, and so endanger a servant who may take hold of the latter in the belief that it is dead."'' An employer is also liable for the defective insula- tion of a part of an apparatus into Avhich there is danger that a cur- rent of electricity may pass.'' 103. — from explosions. — (See also § 81, supra.) — An injury caused by blasting powders wliich are of a defective quality is action- able.' So, also, the servant may recover where he is injured because iu-.proper appliances are provided for manipulating such powders,^ or ' Actions have been held maintainable where an excessive accumulation of slabs in a slab burner engendered ex- treme heat, and thereby caused the structure to fall. Faerber v. T. B. Hcott Lumler Co. (1893) 86 Wis. 226, 56 N. W. 475. Where a blast furnace was in such a condition that there was a recurrent danger of a rush of flame from the door. Eenderson v. Carron Co. (1889) 16 Sc. Sess. Gas. 4th series, 633. Where an appliance in a chute in a malt grindinjj mill, for preventing the spread of fire from one floor to an- other, was allowed to get out of order. Wiedeman v. Everard (1900) 56 App. Div. 358, 67 N. Y. Supp. 738. ' Junior v. itissouri Electric Light 16 MASTER AND SERVANT. [chap. tt. for the jury.^ The mere fact that the master may have provided for an effective system of inspection is wholly immaterial after any par- ticular risk has been found to exist Inspection is merely a prelim- inary proceeding which is necessary to enable the master to ascertain whether the instrumentalities are defective or not, and, when it has served its purpose by disclosing an imperfection, other obligations its mine, long enough before the acci- dent to have given time to repair, this was sufficient to make the company lia- ble for an injury caused by the fall of the roof. If a foreign ear comes to a company ■with defects visible, or discoverable by ordinary inspection, it should either re- fuse to receive it, or immediately repair it sufficiently to make it reasonably safe. Chicago, St. L. & P. R. Go. v. Fry (1891) 131 Ind. 319, 28 N. E. 989; Atchison, T. & 8. F. R. Go. v. Myers (1894) 11 C. C. A. 439, 24 U. S. App. 295, 63 Fed. 793; Qottlie'b v. 1}ew York, L. E. & W. R. Go. (1885) 100 N. Y. 462, 3 N. E. 344. See, further, chapter xn., post. ' A verdict Ending a railroad com- pany liable for the death of a brakeman killed while making a coupling, by steel rails which projected over the end of a flat car, will not be set aside, where the conductor in charge of the train ob- served the position of the rails thirty hours before the accident. Gorbin v. Winona £ St. P. R. Go. (1896) 64 Minn. 185, 66 N. W. 271. A railway company which had actual notice of the defective condition of a foreign car, sev- eral hours before a servant was injured in handling it, may properly be found liable. Denver, T. d Ft. W. R. Go. v. Smoch (1897) 23 Colo. 456, 48 Pac. 681. An employer who knew that his machin- ery was defective, several weeks before an accident to an employee, is negligent, where he fails, without excuse, to make the necessary repairs. Rotnona Oolitic Stone Go. v. Phillips (1894) 11 Ind. App. 118, 39 N. E. 96. Two weeks is an unreasonable time for a railroad company to allow piles of gravel, used in ballasting, to remain between its tracks in its yards at a division station. Hurst V. Kansas Gity, P. & G. R. Go. (1901) 163 Mo. 309, 63 S. W. 695. It is not error to allow a plaintiff to prove that a defective switch which caused a derailment had been in the same condi- tion for several weeks previously. Kan- sas City, M. & B. R. Co. v. Welb (1893) 97 Ala. 162, 11 So. 888. A verdict for the plaintiff is warranted, where a spring, intended to automatically lower a gate in front of the shaft of an ele- vator used by plaintiff while acting as porter for defendant, was left out of re- pair by defendant for three weeks after being notified thereof. Larkin v. Wash- ington Mills Co. (1899) 45 App. Div. 6, 61 N. Y. Supp. 93. In Doing v. Neio York, 0. d W. R. Co. (1893) 73 Hun, 270, 26 N. Y. Supp. 405, the plaintiff was held to be properly nonsuited for the reason that there was no evidence that a car had been out of repair a suf- ficient length of time to jvistify the jury in finding that the defendant knew of its condition, or was negligent in not ascertaining it. The court of appeals ([1897] 151 N. Y. 579, 45 N. E. 1028), however, said that, as the defendant had notice on Saturday that the car was out of order, the fact that an accident occurred from its use on the following Monday was some evidence of negli- gence. In Knapp v. Sioux Gity & P. R. Co. (1887) 71 Iowa, 41, 32 N. W. 18, a request of defendant for the following instruction -was held to have been rightly refused for the reason that it failed to present the thought that de- fendant's employees used proper care in the inspection of the road, and, in the exercise of such care, there was "an ap- parent necessity" discovered by them to make the repairs required: "If the jury find from the testimony that the officers of the defendant employed skil- ful and competent men to look after and keep in repair its track, and furnished the requisite men and material to do the work and keep the track in good re- pair, and if you further find from the testimony that the track was frequently inspected by them, and that the old ties were taken out and replaced by new ties as often as there was any apparent ne- cessity for so doing, you cannot find ♦hat the defendant was negligent in keeping and maintaining its tracks." In Norfolk & W. R. Co. v. Oilman (1891) 88 Va. 239, 13 S. E. 475, a rail- i 112] MASTER'S DUTIES DEEmED TO BE CONTINUOUS. 247 come into play. "It is not sufficient to be simply cautionary, when a manifest danger exists that may and ought to be removed."^ Some authorities have undertaken to apply the converse of this principle, in a form which would relieve the master from liability, unless his knowledge, actual or constructive, was obtained sufficiently long before the injury was received to have enabled him to adopt re- medial measures.* But these cases do not, it is submitted, take proper account of the fact that the servant is, for the purposes of the argu- ment, to be considered as having no knowledge of the defective con- ditions, since it would olhoi'wise be a controlling issue whether he would be precluded from recovering, on the ground of an assumption road had, for four years, kept a chained log at the end of a wharf to arrest its cars, instead of providing a stronger structure, fit for such a purpose. The court said: "Was not this negligence? The structure was temporary only, and not safe. This was known to the com- pany, as better timbers were ordered; and yet, knowing the danger, and ad- vised of the need, days were allowed to run into weeks, weeks into months, months into years, and still the tempo- rary and unsafe structure had not been replaced by the permanent and substan- tial contrivance in use elsewhere, and which, if it had been in place on this wharf, would have an-ested, without danger, these slowly moving cars. This was negligence, beyond question." 'Bean v. Western North Carolina R. Co. (1890) 107 N. C. 731, 12 S. E. 600. There, the fact that a railroad company employed a track walker, whose duty it was to examine and see, just after a train had passed a dangerous point, whether rock had fallen, was held to be no excuse for allowing a mass of rock to remain in such a position and condi- tion that it fell upon the track and in- jured an employee, where the danger was obvious. * Common-law rulings to this effect are, Erskine v. Chino Valley Beet-Sugar Co. (1895) 71 ¥eA. 270; J ohtvson v. Armour (1883) 18 Fed. 490 ; Alaiaster Co.Y.Lon- erqan (1900) 90 111. App. 353; Favey v. St. Louis & 8. F. R. Co. (1900) 85 Mo. App. 218. Other decisions, in which the same view has been explicitly adopted, have been rendered in constru- ing the employers' liability act of Ala- bama. But, as the measure of the em- ployer's duty has been declared to be es- sentially the same under that act as un- der the common law {Wilson v. Louis- ville & N. R. Co. [1887] 85 Ala. 269, 4 So. 701), these rulings may be appro- priately referred to here. Mere notice of a defect in a machine or appliance, it has been said, will not render an em- ployer liable for negligence in failing to remedy it, unless he had reasonable time and opportunity for doing so after receiving the notice. Seaboard Mfg. Co. V. Woodson (1891) 94 Ala. 143, 10 So. 87 (1892) 98 Ala. 378, II So. 733, hold- ing that a complaint is demurrable, which merely alleges that a. defect was known to some person intrusted by the master with the duty of seeing that the "ways, works, machinery, or plant were in proper condition" (Code, § 2590), and fails to state how long before the accident the defect was so known. In United States Rolling Stock Co. v. Weir (1892) 96 Ala. 396, II So. 436, it was held, following this case, that an in- struction to the effect that the jury must find for the plaintiff if the defect which caused the injury was, or with proper diligence might have been, known to the defendant or his agents at the time the injury was suffered, is erroneous. The defendant must have had sufiicient time to remedy the defect, after its discovery, before he can be chargeable with negligence in failing to effect the remedy. The same view reap- pears in the ruling that defects in a track, when they arise, do not at once fasten a liability upon the railroad com- pany. It is only after they have ex- isted long enough for diligent supervi- sion to discover and remedy them, that liability attaches. Kansas City, M. & B. R. Co. V. Webh (1892) 97 Ala. 162, 11 So. 888. 248 MASTER ANt) SERVANT. [chap. Ti. of the risk or of contributory negligence. That it is always a mate- rial qTiestion -whether the master exercised reasonable care and dili- gence in removing a danger after he had knowledge of its existence may be conceded.^ But it seems inequitable and unreasonable to declare that the servant should always be the one to suffer, simply because the employer has been reasonably prompt in taking the neces- sary steps for the repair of the defective instrumentality. The true rule, it is submitted, is that the duty of the master under these cir- cumstances is not, as a matter of law, fully discharged, unless he at least sees that the servant is notified of the danger to which he will be exposed while the abnormal conditions to which that danger is owing are being rectified. See § 117, post. This would seem to be the rationale of a ruling by the supreme court of Pennsylvania that, where an employer is informed that certain machinery upon his premises, out of sight of his employees, is in a dangerous condition, and he takes steps to renew it, but, before such renewal is made, one of the employees, having no notice of the dangerous condition of the machinery, is injured by its breaking, in the ordinary course of his employment, the question of the employer's negligence is for the jury.« As to the duty of a master after he has become aware of facts tend- ing to show that a servant is unfit for his duties, see chapter xiii., post. As to the duty to remedy defects, under the employers' liability act, see chapter xxxvii.^ post. 113. Duty to change the positions of dangerous substances. — Under certain circumstances, the appropriate remedy which suggests itself is the transfer of some substance to a new position where, for various reasons determined by its properties and character, it will no longer expose the ser\^ant to undue hazard.-' 'Alton Lime & Cement Go. v. Calvey 'This point of view is illustrated by (]893) 47 III. App. 343. such decisions as those in which the "Murphy v. Crossan (1881) 98 Pa. master has been held liable for injuries 495. See also Indianapolis & C. R. Co. received by servants who have been put V. Love (1858) 10 Ind. 554, where the to work in places where there are un- court remarked: "If a defect existed exploded charges of blasting powder, in the road, which was known to the Tfeveu v. Sears (1892) 155 Mass. 303, company, but which it was impossible 29 N. E. 472; Alton Lime & Cement Co. for them to immediately remove or rem- v. Calcey (1893) 47 111. App. 343. Or edy, and in consequence thereof the road who have fallen, when they were using was unsafe, but not impassable, and yet a stairway which had been moved, and tliey should place an employee upon the put in such a position as to be insecure road, and suffer him, in ignorance of said for anyone who stepped on it. Tendrup defect, to attempt to operate it, and in- v. John Stephenson Co. (1889) 51 Hun, jury should thereby result to hi-m, cer- 462, 3 N. Y. Supp. 882, Affirmed in tainly there would be a liability." (1890) 121 N. Y. 681, 24 N. E. 1007, 114, 115] MASTER'S DUTIES DEEMED TO BE CONTmUOUS. 249 114. Duty to abstain from ordering servants to work in positions where the abnormal conditions will endanger them. — To refrain from giving orders which will require a servant to put himself in such a position that he will be subjected to the risk of injury from a de^ fective instrumentality is a duty the breach of which is no less cul- pable than the breach of the analogous duty of abandoning the use of the defective instrumentality.-^ On the otlier hand, the master's duty is discharged if, pending the execution of repairs, he takes temporary measures which will prevent servants from having access to the dan- gerous instrumentality.^ 115. Duty to furnish appliances which will render the abnormal con- ditions less dangerous. — Sometimes the duty to remove the cause of the danger may take the form of a duty to furnish special appliances, in view of the possibility that the servant may be occasionally exposed to dangers against which those appliances will be an adequate pro- tection.^ Or who, while working on a train, have come into collision with n. structure or other object in dangerous proximity to a railway track. Chicago d I. R. Co. v. Russell (1887) 91 111. 298, 33 Am. Rep. 54; Louisville & N. R. Co. v. Filhern (1869) 6 Bush, 574, 99 Am. Dec. 690; Texas & P. R. Co. v. ffohn (1892) 1 Tex. Civ. App. 30, 21 S. W. 942. Or who have. been struck by a mass of ice and snow which fell on them from a roof where it had accumulated. Dugal V. People's Bank (1899) 34 N. B. 581. If a railroad track is constructed in such a manner that rocks overhang it, or loose rocks are imbedded in the slopes of cuts through which it runs, in such a position that they may be dis- placed by the action of the elements and precipitated upon the track, it is the duty of the company either to remove them or to take other adequate precau- tions to guard against danger and ren- der the track reasonably safe. Clune V. Ristine (1899) 36 C. C. A. 450, 94 Fed. 745 (Sanborn, J., dissented). See also Bean v. Western North Carolina R. Co. (1899) 107 N. C. 731, 12 S. E. 600, cited in note 3 to preceding section. 1 A master who is notified that posts upon which girders are to be set are in- securely fastened is guilty of little less than criminal negligence in sending car- penters to work upon them, without bra- cing them. Tlerdler v. Buck's Stove & Range Co. (1896) 136 Mo. 3, 37 S. W. 115. See also Elledge v. National City & 0. R. Co. (1893) 100 Cal. 282, 34 Pae. 720 (bank of earth caved in, defendant's representative being fully aware of its condition) ; Deweese v. Meramec Iron Min. Co. (1895) 128 Mo. 423, 31 S. W. 110, Affirming without comment (1893) 54 Mo. App. 476 (laborer put to work under slope down which pebbles and stones were constantly falling) . See also Consolidated Ice Mach. Co. v. Kiefer (1888) 26 111. App. 466. ' A jury is warranted in finding that car inspectors who, upon finding the steps at the rear end of a. sleeping car to be broken, remove them and do not condemn the car as being in an unfit condition to be left in the train, are negligent if they fail to secure the plat- form gate in such a manner as entirely to prevent the egress of persons from the interior of the car. Cameron v. Great Northern R. Co. (1898) 8 N. D. 124, 77 N. W. 1016. ' Thus, as a railroad company is bound to know that foreign cars may often have drawheads of different heights, and to appoint inspectors to ascertain the existence of this as well as other dangers incident to the handling of such cars, it is error to rule that the want of the crooked links which are nec- essary for the safe coupling of such cars is one of the risks assumed by a brake- man. Bennett v. Greentrich & J. R. Go. (1895) 84 Hun, 216, 32 N. Y. Supp. 457. 260 MASTEtl AKD SERVANT. tcHAp. iX. 116. Liability of the master after the remedy has been applied. — The extent of the master's liability for injuries caused by an instru- mentality which, at the time of the accident, had been again brought into service after having been witlidrawn from use for the purpose of restoring it to its normal condition will obviously depend upon whether the remedial measures adopted by him or his agents have, as matter of fact, resulted in rendering it reasonably safe, in so far as that can l>e effected by the exercise of ordinary care.-' As to the effect of the master's specific ]Dromise to remedy the dan- gero\is conditions, see chapter xxii., post. 117. Duty to warn the servant as to the existence of abnormal dan- gers. — Where the servant is not safeguarded by immediate abandon- ment of the use of the defective instrumentality, or by its immediate restoration to a condition of normal safety, it is clearly the duty of the master to warn the servant of the dagger to which he will be ex- posed, unless he is known to have received information as to this from other sources.-' See chapter xvi.^ post. The obligations of remedying defects and of warning the servant of the existence of those defects are sometimes spoken of as> being strictly alternative in their nature, as though the master could relieve himself of responsibility by discharging either of them.^ But this ' Chicago & N. W. R. Co. v. Delaney hold water nor sustain a full head of (1897) 169 III. 581, 48 N. E. 476, Af- steam, the question of the employer's firming (1896) 68 111. App. 307; Pio- negligence is one of fact for the jury. neer Cooperage Go. v. Bomanoivicz Kirlcpatrick v. Zfew York C. & H. R. R. (1899) 85 111. App. 407, Affirmed Co. (1879) 79 N. Y. 240. The operator (1900) 186 111. 1, 57 N. E. 864 (but of a pulp mill is not, as a, matter of not on this point explicitly). law, negligent in requiring an employee An employer is not, as matter of law, to use a mended circular saw, where it free from negligence toward an em- had been worked for a month and did ployee injured by the fall of a freight not appear to be weaker at the mended elevator, although it had just been re- point than at any other, or to have paired by an expert, where it was of a broken at that point or in consequence rather poor class of elevators, and the of its mended condition. Lau v. manager in charge knew of defects Fletcher (1895) 104 Mich. 295, 62 N. which were not repaired at all. Qoggin W. 357. V. D. M. Osborne & Co. (1896) 115 Cal. ' It is negligence, as matter of law, to 437, 47 Pae. 248. The falling of the leave the track in an exposed place like roof of a mine is not one of the ordinary a gorge, where it is specially liable to hazards of the service of a driver there- be injured by a rain storm, without a in, where the employer, upon notice of guard for ten hours after the storm is the condition of the roof, had appointed over. Hardy v. 'North Carolina C. R. a timberman to secure it, and the roof Co. (1876) 74 N. C. 734. had been left in an insecure condition. " "If the master knew, or under the Consolidated Coal Co. v. Scheiier circumstances ought to have known, (1896) 65 111. App. 304. Where a lo- that a machine in use was out of repair comotive boiler explodes, killing the fire- and dangerous, it was his duty to see man, and there is evidence that the en- that it was put in proper repair, or to gine was frequently taken to the repair warn those using it of the danger, if shops for repairs, that it would not they were ignorant of it." Rice v. § lit] MASTliU'S DUTIES bBfiMED TO BE CONtlNtfOUS. 251 way of putting the case is not a strictly accurate one. In the first place, it involves the hypothesis that it is a matter of legal presump- tion that the effect of a warning is to transfer the responsibility to the servant, or disable him from recovering damages for the reason that his continuance of work after having thus acquired a knowledge of the conditions charges him with an acceptance of the risk or with contributory negligence. This hypothesis cannot be entertained as to all jurisdictions. See chapters xvii., xviii., and xx.^ post. An- other objection to the statement in question is that it involves the un- warrantable proposition that an employer who proceeds to remedy a defect with due diligence relieves himself thereby from all respon- King Philip Mills (1887) 144 Mass. concerned, if the track is injured, and 229, 59 Am. Eep. 80, 11 N. E. 101; thereby becomes unsafe, the company is Louisville, N. A. & G. R. Co. v. Bates under no obligation to repair the same. (1897) 146 Ind. 564, 45 N. E. 108. To It must, however, give them due and same effect see Findlay Brewi/ng Co. v. timely notice of the injury, so that dan- Bauer (1893) 50 Ohio St. 565, 35 N. E. ger may be averted, and, having given 55; Alton Lime & Cement Co. v. Calvey such notice, may take whatever time it (1893) 47 111. App. 343; Denver, T. & may deem proper to repair the same. Ft. W. R. Co. V. Smooh (1897) 23 Colo. If the injury is such a one as to pre- 456, 48 Pac. 681; Carlson v. Oregon vent the running of trains over that Short Line & TJ. N. R. Co. (1892) 21 part of the track, when proper notice Or. 450, 28 Pac. 497. In Henry v. Lake thereof is given, the company may take Shore & M. S. R. Co. (1882) 49 Mich, such time to repair the same as it 495, 13 N. W. 832, the negligence relied pleases, even an unreasonable time, and upon and attempted to be proved was its employees cannot call it to account that a suflfieient number of men was not therefor. If the company owes a duty employed upon a, certain section of ci to its employees to keep the track in a railway to give proper notice to ap- good, safe, and suitable condition, upon proaching trains in case of an accident, which they could run, propel, and man- and to make the repairs within such age its locomotives and trains of cars, reasonable time as, at that season of as charged, and if the company must, the year, would be required by ordi- at all times, have a sufficient force of nary prudence, under all the existing men on hand to repair in case of casual- circumstances and in view of the prob- ties of this kind, within even a reason- able dangers of injury. The court able time, the question at once arises, said : "In behalf of the company it By what standard shall these things be was argued that the company owed no determined ? If a rail is broken, must duty to its employees to repair this the force be sufficient to repair the track within any specified time, or at track before the arrival thereat of the all; that, as to its employees, it might next train? If so, then a much larger leave the track in an impassable oondi- force must be employed where a train tion, while its duty to the public is approaching than in a case where sev- would be very different ; and that the eral hours would intervene, although, in duty it owed its employees, in such a either event, the extent of the injury to case, was to give them sufficient notice the track were the same. The adoption of the danger, so that they might not of such a rule would permit no allow- receive any injury in consequence there- ance to be made between slight and ex- of. This position would seem to be un- tensive injuries to the track. The injury answerable. The company owes a duty might be such that a few men could to the public to keep its track in a safe make the necessary repairs in a very and suitable condition, and also to run short time, or be of so serious a nature its trains with regularity and despatch that a large force would necessarily be over the same, for the carriage and employed for days. Then how could transportation of passengers and the company know what force would be ireight. In so far as its employees are required? Should it anticipate slight, 252 Master and servant. [chap. i^. sibility, whetlier he warns the servant or not. But it is plain that the circumstances may sometimes be such that a jury would be justi- fied in inferring that he ought also to have given the servant such in- structions as would ha'^-e enabled him to protect himself more effectu- ally, during the period which was to elapse before the dangerous con- ditions could be remedied.^ It is conceived, thei'efore, that the true principle in this connection is tliat, under the circumstances supposed at the commencement of this section, the master is always culpable if he does not warn the servant, and may or may not be subject to an ac- ordinary, or severe damage to its track, and how and by whom should injuries thereto be classified? Then, again, the same rule could not be applied to all roads alike. Where the business of the road is large, and many trains are daily running over the same, a much more strict rule and larger force would necessarily be required than in a case where but few trains were running. This is the best answer the na- ture of the questions will admit of, al- though a dangerous one when we con- sider the claim made in this case that four men Instead of three should have been employed. But the duty to promptly repair its track, or to repair within a reasonable time, grows out of the duty to carry freight and pas- sengers with promptness and despatch. This is the contract obligation which the company enters into with its pa- trons, but which it has not entered into with its employees. As to them, it may delay its trains, or it may stop them, temporarily, or permanently, and the employee cannot complain or seek re- dress in damages in consequence there- of. Their claim, if any, would grow out of their contract relation with the company for employment, and would not be based upon a stoppage in the running of trains, caused by delay in repairing the track, but for their wages, to which they would be entitled, if employed for a definite period, whether trains were run with regular- ity, or were not run at all. There could therefore be no such thing as a duty to the employees to repair within a rea- sonable time, or to repair at all. The duty to them is to furnish a reasonably good and safe track, and, if an injury occurred thereto, to discover the same with reasonable diligence and promptly give due and timely notice thereof to its employees, so that they might be protected from danger." 'See Denver, T. <& Ft. W. R. Co. v. Smock (1897) 23 Colo. 456, 48 Pac. 681, where the duty of a railway company to put a, distinctive mark on a foreign car, discovered to be defective, was rec- ognized. In this particular class of cases, however, the kind of warning thus given does not seem to be regarded by all courts as sufficient. In Rodney V. St. Louis S. W. R. Co. (1895) 127 Mo. 676, 28 S. W. 887, 30 S. W. 150, the court said: "The defendant did not discharge its full duty to the plain- tiff by inspecting and marking the car. The duty to furnish reasonably safe ap- pliances and machinery for the use of its servants in the course of their em- ployment was not only an imperative, but a continuous, duty. It ran, so to speak, with the defective car from the moment it was discovered to be defect- ive, continually calling upon the mas- ter to repair it, or to warn those of its servants whom it required in the course of their employment to handle it of its dangerous character." In Corbin v. Winona & St. P. R. Go. (1896) 64 Minn. 185, 66 N. W. 271, it was held that a railroad company was not, as matter of law, free from negligence towards a brakeman killed by steel rails unnec- essarily projecting over the end of «, flat car while he was making a coupling, where it was well known that this kind of freight was apt to slide backwards or forwards, and where the conductor in charge of the train observed the con- dition of the rails thirty hours before the accident, so that there was an op- portunity to remove the danger by side- tracking the car, as was customary M'ith those in bad order, or by adjusting the rails so that they would not project be- yond the end of the car. The fact that the conductor warned him to be careful in making the coupling did nbt, it was said, prevent his recovering under such circumstances. § 118] MASTER'S DUTIES DEEMED TO BE CONTINUOUS. 253 tion on other grounds, even thoiigh he may have given the servant ade- quate vsraming. 118. Duty to alter improper methods. — In the caaes so far cited as illustrative of the general principle that the master's obligations are continuous in their nature, the subject-matter has been the material substances themselves which constitute portions of the plant. It is plain, however, that the principle is also applicable where the abnor- mal dangers v/ere caused by improper methods of doing work. The obligation of altering these attaches to the master from the time they are known or ought to have been known to him.-^ * Thus, a master is bound, by promul- there) ; Harper v. Indianapolis & St. L. gating a proper rule, or otherwise, to R. Go. (1871) 47 Mo. 5G7, 4 Am. Rep. change a practice which, to his knowl- 353 (mismanagement of engines by edge, has for a long time been followed firemen, company's agents being aware by one set of his servants to the peril that such employees were in the habit of another set. Doing v. 'New York, 0. of operating engines in the absence of d W. R. Co. (1897) 151 N. Y. 579, 45 the engineers). So, a master who has N. E. 1028, Reversing (1893) 73 Hun, notice of the violation of a rule adopted 270, 26 N. Y. Supp. 405 (the practice for the protection of an employee is complained of was the shunting of cars charged with the duty of taking the nee- onto tracks leading to a repair shop, essary steps to correct the evil and without adopting proper precautions obviate the injury. St. Louis, A. <& T. for preventing the cars from running R. Go. v. Triplett (1891) 54 Ark. 289, through doors of the shop, or for warn- 304, 11 L. R. A. 773, 15 S. W. 831, 16 ing such employees as might be at work S. W. 266. CHAPTER X. KNOWLEDGE AS AN ELEMENT OP A MASTER'S LIABILITY. A. General principles. 119. Analysis of the conception of negligence with reference to the knowl- edge of the person charged therewith. 120. Same subject in its special application to the liability of a master. 121. — to other relations involving analogous responsibilities. 122. Actual knowledge; liability inferred from. 123. Absence of actual notice not always decisive in the master's favor. 124. Constructive knowledge; how related to the master's absolute duties. 125. Constructive knowledge; liability inferred from. 126. Absence of constructive knowledge; liability negatived by. 127. Relation of this doctrine to that which declares the master not to be an insurer. 128. Doctrine considered with reference to the burden of proof. 129. Abnormal conditions originally created by causes for which the mas- ter is not responsible; application of foregoing principles to. B. Circumstances bearing upon the question whether notice op the condi- tions SHOULD BE IMPUTED TO A MASTER. 129a. Character of danger as being a normal incident of the business. 130. Notoriety of defect. 131. Obvious nature of defect. 132. Length of time during which defect has existed. 133. Repairs and alterations; inference from. 134. Failure of servant himself to observe the dangerous conditions. 135. Manner in which instrumentalities discharged their functions prior to the accident; inferences from, generally. 136. Previous satisfactory operation of the instrumentality which caused the injury. 137. Previous unsatisfactory operation of the instrumentality which caused the injury. 138. Previous unsatisfactory operation of other instrumentalities of the same kind. 139. Province of court and jury, where the master's constructive knowledge is in question. C. What degree of foresight is imputed to a master. 140. General principles. 141. Liability imputed because accident should have been anticipated. Operation of natural laws. 142. Liability denied because accident could not have been anticipated. 143. Master not bound to anticipate infliction of injuries by simple instru- mentalities, 254 § 119] KNOWLEDGE AS AN ELEMENT OF LIABILITY. 255 144. Master not bound to anticipate accidents resulting from the unusual mental or physical defects of employees. 145. Exceptional character of accident, how far an element negativing a duty to anticipate it. 146. No similar accident previously produced by same conditions. 146a. Unexpectedly severe strain put upon appliances. 147. Unexpected position of the servant at the time of the accident. 147a. Servant's attention directed by fellow servant. D. Whose knowledge of abnormal conditions is imputed to the masteb. 148. Introductory. 149. Knowledge of a, mere coservant not imputed to the master. 150. Knowledge of vice principal imputed to master. a. Superintendents and managers. 6. Superior servants of lower grade than superintendents. e. Servants furnishing or maintaining inorganic instrumentali- ties. d. Servants having power to hire and discharge other servants. e. Servants whose duty is restricted to reporting defects. A. General peikctples. 119. Analysis of the conception of negligence with reference to the knowledge of the person charged therewith. — Before entering upon a detailed examination of the cases which bear upon the subject of this chapter, it will be advisable to insert a few introductory remarks, de- signed to elucidate the fundamental principles to which the proposi- tions which we shall have occasion to state are referable. That knowledge is a constituent element of negligence under any of its aspects will be sufficiently obvious to anyone who considers that a want of care can only be manifested in one of two ways, viz., either by a faihire to make such inquiries as would have turned partial and merely constructive, into complete and actual, knowledge, or by a fail- ure to act prudently with a full knowledge of the conditions. Any other theory would be inconsistent with that fundamental principle of jurisprudence which makes ignorance of facts a valid excuse for an injurious act, provided such ignorance is justifiable. In the ordi- nary analyses of negligence, this aspect of the tort is somewhat ob- scured, for the reason that they lay the chief stress upon the stand- ards by which its existence or nonexistence is determined. In the two following well-known definitions, for instance, the element of knowl- edge is wholly ignored, so far as the actual words which they contain are concerned. "JSTegligence is the omission to do something which a reasonable man guided by those consideration? which ordinarily regulate the 256 MASTER AND SERVANT. [chap. x. conduct of human affairs, would do, or doing something which a pru- dent and reasonable man would not do."^ "ISTegligence is the failure to do what a reasonable and prudent per- son would ordinarily have done under the circumstances of the situa- tion, or doing what such a person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion."^ In other definitions the presence of this element is more apparent, but is not very distinctly insisted upon. "ISTegligence, in its civil relations, is such an inadvertent imperfec- tion, by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a dam- age to another. The inadvertency or want of due consideration of duty is the injuria, on which, when naturally followed by the dam- num, the suit is based."^ Negligence is the want of such attention to the natural and probable consequences of the act or omission as a prudent man ordinarily be- stows in acting in his own concerns.* In a third set of definitions the element of knowledge is put prom- inently forward. "iNegligence is practically synonymous with heedlessness or care- lessness, — not taking notice of matters relevant to the business in hand of which notice might or ought to have been taken."^ "An actor is negligent when he is ignorant of the consequences of his act, if his ignorance proceeds from thoughtlessness, recklessness, carelessness, or want of due attention. ISTegligence is inadvertence to consequences to which a man might have adverted, and to which he would have adverted had he been desirous to obey the law and perform the obligations which it imposes."^ "Of the three gradations of misconduct towards others, fault or negligence (culpa) is an unlawful act in ignorance of the subject, the degree, the instrument, the consequences, when it was reasonable to expect the mischief; unlawful intention (dolus) is breach of law with knowledge of these elements, but without premeditation; malice or ^ Alderson, B., in Blyth v. Birming- ' Wliarton, Neg. § 3. ham Waterworks Go. (1856) 11 Exch. " N. Y. Penal Code, § 718, cubsec. 1, 781, 25 L. J. Exch. N. S. 212, 2 Jur. Donnan's Ann. Code, 1884. N. S. 333. Ml Stephen, History of Criminal ' Swayne, J., in Baltimore & P. R. Law, p. 122. Co. v. Jones (1877) 95 U, S. 439, 24 L, " Poste's Gaius, p. 13, ed. 506. § 120] KNOWLEDGE AS AN ELEMENT OF LIABILITY. 257 depravity is evinced by the resolution or deliberate intention of vio- lating law."^ It can scarcely be said that any of these definitions indicate satis- factorily the true relation which the element of knowledge bears to that absence of care which constitutes the main element in the con- ception of negligence. The defect in such explanations is that they fail to take account of the case in which negligence is predicated of acts done by one who is fully aware of all the circumstances witli ref- erence to which he is called upon to choose a course of action, and who also knows that there is a probability, which in some instances approaches to a moral certainty, that the course of action which he does adopt will prove injurious to some one. Unless the familiar phrase "wilful negligence" is based upon a wholly false conception, no definition which fails to cover an act done by a person in this con- dition of enlightenment can be termed satisfactory.^ 120. Same subject in its special application to the liability of a mas- ter. — Such expositions as the foregoing are peciiliarly defective when considered with reference to the circumstances from which an employ- er's liability is predicated, for they cannot be made to comprehend the cases of actiial or constructive knowledge of the existence of the dan- gerous conditions. It would be doing violence to common sense to say that the liability in this instance is based upon his blameworthy ignorance of consequences. His fault really consists in non-action or wrong action, with a full appreciation of the probable results of his conduct. In other words, the law requires him to indemnify the in- jured servant because he knows or is presumed to knoAV that his in- stitimentalities are in a dangerous condition, and also knows or is presumed to know that this dangerous condition must, in the long run, cause injury to anyone who uses, or is brought into proximity to, those instrumentalities as frequently and as constantly as is the case with a servant. The inadequacy of the ordinary definitions of negligence, as a measure and test of an employer's liability, results from the fact that the special duty which, above all others, is imposed by the law upon him, is the duty of maintaining the instrunientalities of his business in siich a condition that his servants will not be exposed to unneces- sary peril. This duty cannot be effectively discharged, unless he ex- ' Aristotle's Eth. Nic. 3, 5, 8 (trans- geiiee in one respect is the correlative lated in Poste's Gains, p. 15). of diligence, in another of intention; it » It has been well remarked by the is the absence of diligence, or the ab- writer of the article on "Negligence" in sence of intention." the Encyclopedia Britannica: "Negli- Vol. I. M. & S.— 17. 258 MASTER AND SERVANT. [chap. x. ercises reasonable care in seeing that tlie instrumentalities do not fall below a given standard of safety. The primary duty of an employer, therefore, is to obtain such knowledge as is necessary to enable him to decide whether that normal standard is or is not satisfied at any given moment, while his duty to raise the instrumentalities to that standard, after he ascertains that they come short of it, is a secondary duty imposed by the law, for the reason that he must be aware that, if this is not done, his servants will be likely to suffer injury. In short, the very essence of the principle upon which he is held liable is his knowl- edge, either of existing conditions, or of the probable consequences of the continuance of those conditions. The criticisms of Cotton and Bowen, L. JJ., upon the comprehensive rule which Brett, M. E.., undertook to formulate in an oft-cited case^ forbid us to lay it dovni as a universal proposition, applicable to all civil relations, that, as has been declared in a Kausas ease, "where any voluntary act may natu- rally result in the injury of another, the actor must see to it, at his peril, that injury does not follow."^ But this doctrine undoubtedly expresses the conception which is the keynote of all the statements which we find in the books, respecting the extent and character of the master's obligations to secure his servant against personal injury, — the conception, that is to say, of a duty to exercise a reasonably care- ful supervision, with a view to eliminating unnecessary perils from the business.^ Or, to view the matter from a somewhat different standpoint, the qualifications ingrafted on the original rule that a servant assumes the ordinary risks of his employment are that a mas- ter shall not employ his servant in a work which the master is aware is of such a nature that no man could engage in it without incurring liability to the injury complained of.* 121. — to other relations involving analogous responsibilities. — ^Heaven v. Pender (1883) L. R. 11 contract, for the consequences of which Q. B. Div. 503, 52 L. J. Q. B. N. S. he ought, in justice and sound reason, 702, 49 L. T. N. S. 357, 47 J. P. 709. to be responsible." Snow v. Bousa- ' Mastin v. Levagood (1891) 47 Kan. ionic R. Go. (1864) 8 Allen, 441, 85 36, 27 Pac. 122. Am. Deo. 720. See also the following ^ A master must "exercise care and chapter, prudence that those in his employment 'In Potts v. Plunkett (1859) 9 Ir. be not exposed to unreasonable risks C. L. Rep. 290, it was pointed out by and dangers." Noyes v. Smith (1855) Lefroy, Ch. J., that this rational quali- 28 Vt. 59, 65 Am. Dec. 222. "The le- fication of the rule which exemp.t3 the gal implication is that the employer master from liability for injuries re- will adopt suitable instruments and suiting from accidents to those in his means with which to carry on his busi- employment involves the existence of ness. These he can provide and main- knowledge on the part of the master of tain by the use of suitable care and the dangerous nature of the employ- oversight; and if he fails to do so, he ment. is guilty of a breach of duty under his § 122] KNOWLEDGE AS AN ELEMENT OF LIABILITY. 259 The obligation thus imposed upon the master is, it will be observed, the same in kind and degree as that incumbent upon all individuals or corporations who are under a duty towards a given class of per- sons to keep certain material substances in a safe condition. The most familiar example of this duty, apart from the relations of mas- ter and servant, is that which requires municipal corporations to maintain safe highways, etc., for the benefit of travelers. It is the ac- cepted doctrine that no action can be maintained for a breach of this duty unless the corporation is proved to have had notice, actual or con- structive, of the dangerous conditions which caused the injury.^ The same rule prevails as regards other relations in which a duty resem- bling that imposed on an employer is imposed on one of the parties, as, where the servant of an independent contractor is injured by de- fective instrumentalities furnished by the principal employer,^ or where the owner of premises is sued for damages by a licensee.^ It also operates as a restriction upon the liability of carriers for injuries to passengers, the extent of their duty, where freight is concerned, being, of course, determined upon the peculiar considerations which render them practically insurers of the safety of the goods conveyed.* 122. Actual knowledge ; liability inferred from. — It is well settled that a master must respond in damages for an injury resulting from abnormally dangerous conditions, of the existence of which he was ac- ' See 2 Dill. Mun. Corp. § 790. This bound to take steps to know, that the similarity of the principles involved, roof was not sufficiently strong to sup- arid of the results to whicli those prinoi- port the workman's weight. Welfare pies lead, has not escaped the notice of v. London <& B. R. Go. (1860) L. E. 4 the courts. As was remarlied in Buff- Q. B. 696, 38 L. J. Q. B. N. S. 241, 20 man v. Chicago, R. I. & P. R. Co. L. T. N. S. 743, 17 Week. Rep. 1065. (1883) 78 Mo. 50, "cases of this sort (t. *It is observed in a standard work e., where masters are sued by injured that the established rule in regard to servants) are obviously analogous to the liability of a carrier to a passenger those where a municipal corporation is seems to be that the fact of the carrier's sued for an injury arising from a de- having employed an independent con- feet in one of its streets, where one of tractor to furnish the appliances or two things must be shown to hold the structures used in carrying on the busi- city liable, — either notice of the defect ness of transportation will not warrant communicated to the city, or evidence him in trusting to the external appear- that the defect had continued so long as ance of the materials, or relieve him of to allow the inference to be drawn that the duty of carefully inspecting and notice of such defect had been communi- testing those materials. Hutchinson, eated." Carr. §§ 512 et seq. See especially ^ See pp. 45 et seq. of the present Readhead v. Midland R. Co. (1867) L. writer's note in vol. 46 L. K. A., Cleve- R. 2 Q. B. 412, 8 Best & S. 371, 36 L. J. land, 0. C. & St. L. R. Co. v. Berry. Q. B. N. S. 181, 16 L. T. N. S. 485, 15 "Thus, a person who is injured by Week. Rep. 831, Affirmed (1869) L. R. the fall of a plank of a roof, which gave 4 Q. B. 379, 38 L. J. Q. B. N. S. 169, 17 way under the weight of a man hired to Week. Rep. 737, 9 Best & S. 519; In- do some repairs, cannot recover unless galls v. Bills (1845) 9 Met. 1, 43 Am. he shows, either that the hirer knew, or Dec. 346. Lad the means of knowing, or was 260 MASTER AND SERVANT. [ch.vp. x. tiifilly aware. This doctrine is immediately deducible from the gen- eral principle that knowledge is an essential ingredient of negligence, and that a person is ahvays held liable for the natural and probable conseqiiences of his own want of care. "If there is personal negligence in the master, he is liable, and if he knows tlie defects which cause the injury, that is evidence of per- sonal negligence."^ In estimating the extent of the master's liability the essential point to be settled is not whether he knew that certain conditions existed, but whether he knew that those conditions involved danger to the servant.^ There are many cases in which the master may be held responsible for the reason that he understood the conditions which exposed the 'The judges were all agreed that the 1.52 (foreman here had been explicitly ruling in Priestley v. Fowler (1837) 3 warned as to the danger). Mees. & W. 1, Murph. & H. 305, 1 Jur. Where there is evidence showing that 9S7, was to be taken as being subject to the master knows an appliance to be in the implied qualification that the mas- u defective condition, it is not error to ter would have been liable if he had submit to the juiy the question whether known of the unsafe conditions. In he was guilty of negligence in not pro- reply to the contention of counsel, that viding suitable appliances. Glossen v. to render the master liable there must Oehman (1892) 147 Pa. 619, 23 Atl. be actual personal interference on his 843; Essex County Electric Go. v. Kel- part, so as to lay a trap for the servant ly (1897) 60 N. J. L. 306, 37 Atl. 619. in the particular matter from which he Evidence that an employer had directed received the injury, Crompton, J., said: that only quick and active men should "I do not agree to that; I think it is be employed in operating a pair of steel negligence for which the master is lia- shears weighing 12 tons, so that they ble, if he knows that the machinery or might get out of the way in case of acci- tackle to be used by the persons em- dent, is admissible in an action by an ployed by him is improper or unsafe, employee injured by the breaking of the and, notAvithstanding that knowledge, shears, for the purpose of shov ing that sanctions its use." Mellors v. Shaw the employer knew the shears to be dan- (1861) 1 Best & S. 444, 30 L. J. Q. B. gerous. Pacheco v. Judson, Mfg. Co N. S. 336, 7 Jur. N. S. 845. The case (1896) 113 Cal. 541, 45 Pac. 833. cited as exemplifying the situation thus ' Pegan v. Do-novan (1893) 159 Mass. designated was Rolerts v. Smith 1> 33 N. E. 702 (steps descending to (1857) 2 Hurlst. & N. 213, 3 Jur. N. S. cellar of house where plaintiff was set 469, 26 L. J. Exch. N. S. 319. Othei *" '"'"''k were Icnown to be movable, but cases recognizing the doctrine stated in "»* known to be unsafe, or likely to be the text are: Harder & H. Coal Min. unsafely placed by the owner of the Co. y. Schmidt (1900) 43 C. C. A. 532, Premises) Compare the analogous rule 104 Fed. 282; Savannah & 8. It. Co. v. \^^^'rl *^%™^t«™l question m cases Pughsley (1901) 113 Ga. 1012, 39 S. E. ^J^'^'''' ^^"^ A^U^B^^ of contributory neg- 473; Mahood v. Pleasant Valley Goal 1'^;™h ,°LrTff '""+,, °* """■. "''" r /iQooi a TT+oV, QK on -D ^M^ raised is not whether the servant was n- J R . V nam ^' ol w v! .il' •'^^«'-« °* ^he abnormal conditions which nenhe y.Baleooh (1901) 24 Wash. 556, produced the danger, but whether he 64 Pac. 755; Strauss v. Ealerman Mfg. comprehended that there was such dan- Co. (1898) 25 App. Mv. 623, 48 N. Y. ger. Chapters xvii.— xxi. post. See Supp. 1116; Hancock v. Keene (1892) also Ray, Negligence of Imposed Duties, 5 Ind. App. 408, 32 N. E. 329; Chicago 134, cited with approval in Murphy v Edison Go. v. Moren (1900) 185 111. Great Northern U. Co. (1897) 68 Minn 571, 57 N. E. 773, Affirming 86 111. App. 526, 71 N. W. 662. § 122] KNOWLEDGE AS AN ELEMENT OP LIABILITY. 261 servant to 'unnecessary danger, although, in other aspects of the case, the servant would have been unable to maintain his action. Thus, the action may be maintained on the ground of tlie master's actual knowledge obtained through any channel, even though he has duly ful- filled the duty cast upon him by the law to see that the instrumentali- ties of his business are properly examined by competent agents, if not by himself in person.^ So, the rule that a servant, when he accepts a certain employment, impliedly contracts that he possesses a certain degree of skill, does not avail to absolve the master from responsibility for injuries to a servant whose inexperience is put forward as a ma- terial ingredient in his right of action, where the master has actual knowledge of the extent of the servant's skill.* Here the governing principle is that it is negligence to set a servant to work at a special task, where the employer knows that he lacks the strength and skill necessary to enable him to do it safely.' So, although a master may have given instructions which would have been sufficient in the case of a servant of average intelligence, his liability remains absolute if he knows that the servant lacks capacity to understand the dangers of the work, however much he may have been instructed.^ So, the right of an employee to recover for negligence of a corporation, in hiring an incompetent sei'vant over the protest of some of its officers who are aware of his incompetence, is not affected by the failure of another employee to give notice of subsequent neglect and unfitness of such servant. '^ So;, the servant's breach of a rule formulated for the safety of employees will not be imputed to him as contributory negligence, 'In Indiana, I. & I. R. Co. v. Snyder 122, 20 S. W. 1014, 23 S. W. 917; Ari- (1894) 140 Ind. 647, 39 N. E. 912, the sona Lumler & Timber Go. v. Mooney defendant's counsel laid stress upon the (1893; Ariz.) 33 Pae. 590. fact that the lumber, out of which a de- " Noblesville Foundry & Much. Go. v. fective car handle was constructed, was Teaman (1892) 3 Ind. App. 521, 30 N. inspected before it went into the shops, E. 10. It has, however, been held that and found to be clear and free of knots ; the mere fact that the agent of the em- but the court said: "An inspection is ployer, who hired a brakeman, knew but the means employed by the master him to be inexperienced, will not make to discover defects. However, if, as in the employer liable as for negligence, this case, he obtains notice through an- the special reason assigned being that other representative agent of the insuffi- the employer cannot properly be deemed ciency of the appliances in time to rem- guilty of greater negligence in hiring edy the same, then the fact that an in- him than he is guilty of in soliciting and spection was made by another of his accepting the employment. McDer- agents, and nothing as to the defective- mott v. Atchison, T. & 8. F. R. Go. ness in question ascertained, would not (1896) 56 Kan. 319, 43 Pac. 248. be available in favor of the master. ° See chapter xvi. post, on the duty Where there is actual knowledge, the to instruct, matter of inspection is not controlling." ' Mexican 'Nat. R. Go. v. Musseite ^Goins V. Chicago, R. I. & P. R. Co. (1894) 80 Tex. 708, 24 L. R. A. 642, 26 (1889) 37 Mo. App. 221; Missouri P. S. W. 1075, Affirming (1894) 7 Tex. R Go. V. King (1893) 2 Tex. Civ. App. Civ. App. 169, 24 S. W. 520. , 262 MASTER AND SEllVANT. [cSap. 5£. where sucli rule has been habitually violated, with the knowledge and consent of the master or his representative.® And, in general, it may be laid down that the law imposes responsibility whenever a master is aware of the existence of the abnormally dangerous conditions, al- though those conditions may be due originally to some cause, for the operation of which he is prima facie not liable. See cases cited in § 129, post. 123. Absence of actual notice not always decisive in the master's favor. — Under some special state of the evidence it may be apparent that the master was not negligent unless he had actual knowledge of the defect which caused the injury. The servant's inability to estab- lish the fact of such knowledge will, then, prevent his maintaining the action.^ Usually, however, the converse of the rule stated in the pre- ceding section does not hold good in all respects ; for, as vdll presently be shown, the employer may be held liable, although iio actual knowl- edge on his part is established, if it appears that, ey the use of ordi- nary care, he could have ascertained that the conditions which caused the servant's injury existed.^ The only result of its being proved that the master had no actual knowledge is that the burden of proving thai his ignorance was culpable is cast upon the servant.® It is true that statements of the courts as to the effect of a want of knowlege on the master's part sometimes omit a formal reference to constructive knowledge, but with very few exceptions such statements were not made in cases in which the question whether there was any difference between the legal consequences of actual and constructive knowledge was fairly raised, '^o special importance, therefore, is to be at- tached, in the present connection, to the fact that we find in the books such remarks and nxlings as those mentioned in the subjoined note.* ' Boess V. Clausen & P. Brewing Co. ^ Paine v. Eastern R. Co. (1895) 91 (1896) 12 App. Div. 366, 42 N. Y. M^is. 340, 64 N. W. 1005 (defective Supp. 848, and cases cited in § 232, blocking of guard rail). post. " See chapter xviii., post. ^ Oroth V. Thomann (1901) 110 Wis. * "As the declaration contains no 488, 86 N. W. 178; Connors v. Elmira, charge that the defendant knew any of C. & N. B. Co. (1895) 92 Hun, 339, 36 the defects mentioned, the court is not N. Y. Supp. 926 (railroad company not called upon to decide how far such chargeable with negligence in allowing knowledge on his part, of a defect un- a team and wagon, used by other parties known to the servant, would make him in drawing coal from its cars, to stand liable." Priestley v. Fowler ( 1837 ) 3 so near the track that there is not suf- Mees. & W. 1, Murph. & H. 305, 1 Jur. ficient room for a brakeman to stand 987. "When proper appliances have between the wagon and a car after mak- been supplied by a master to a man they ing a coupling, where such wagon had may well become unsafe to the knowl- not previously been left so near the edge of the man and without the knowl- track except on one occasion, two weeks edge of the master, and so it is that before, of which the company had no each issue must, in such a case, be es- actual notice). tablished by the man when he sues his § 124] KNOWLErXJE AS AN ELEMENT OE LIABILITY. 203 124. Constructive knowledge; how related to the master's absolute duties. — The principle that the obligations of the master to the serv- ant can be fulfilled only by the exercise of due cafe in providing suit- able instrumentalities for the operation of his business is applied in a somewhat different manner, according as the plaintiff's theory and the evidence adduced to support it bring into greater prominence the question whether the master was negligent in allowing certain abnor- mal conditions to remain unremedied, or the question whether he was negligent in remaining ignorant that such abnormal conditions ex- isted. In cases in which the former is the main issue presented, the es- sential object of the investigation is to ascertain whether the instru- mentality which produced the injury was abnormally dangerous to persons using it or working in proximity to it ; and the master's knowl- edge or ignorance of its dangerous condition is treated as material, only for the reason that the existence of that condition cannot be im- puted to him as negligence unless it was known to him, either actu- ally or constructively. To this conception are referable such state- ments of the extent of the master's liability as those mentioned below.^ master." Williams v. Birmingham Jiattery <& Metal Co. (1899) 2 Q. B. 338, 68 L. J. Q. B. N. S. 918, per Smith, L. J. It is not negligence in the master if a tool or machine breaks, whether from an internal, original fault, not ap- parent when the tool or machine was first provided, or from an external, ap- parent one, produced by time and use, and not brought to the master's knowl- edge. Baker v. Allegheny R. Co. (1880) 95 Pa. 211, 40 Am. Rep. 634. A seaman cannot recover damages from the owner of his ship on the ground of her being unseaworthy, unless he al- leges and proves that such owner was aware of her condition. Couch v. Steel (1854) 3 El. & Bl. 408, 2 C. L. Rep. 940, 23 L. J. Q. B. N. S. 121, 18 Jur. 515. A verdict for the defendant is rightly directed where there is no evi- dence of knowledge on the employer's part. Skellenger v. Chicago d N. W. B. Go. (1883) 61 Iowa, 714, 17 N. W. 151. The evidence is insufficient to sustain a verdict for the plaintiff, where it does not prove that the defendant knew of the defect. Arcade File Works v. Juteau (1896) 15 Ind. App. 461, 40 N. E. 818, 44 N. E. 326. Other examples of a similar want of precision in the phraseology may be found in Feltham V. England (1866) L. R. 2 Q. B. 33, 36 L. J. Q. B. N. S. 14, 15 Week. Rep. 151, 7 Best & S. 676, Reversing (1865) 4 Fost. & E. 460; Whittaker v. Coomhs (1884) 14 111. App. 498; Mahoney v. Vacuum Oil Co. (1894) 76 Hun, 579, 28 N. Y. Supp. 196; Fish v. Central P. B. Co. (1887) 72 Cal. 43, 13 Pac. 144; Johnson v. Armour (1883) 5 McCrary, 629, 18 Fed. 400; Illinois Steel Co. v. Paschke (1893) 51 111. App. 456; Acme Coal Min. Co. v. M elver (1894) 5 Colo. A-pp. 267, 38 Pac. 596; Behm v. Armour (1883) 58 Wis. 1, 15 N. W. 806; North Co. V. Fallove (1880) 4 A. J. R. (Vic- toria) 109; Pudsey v. Dominion Atlan- tic B. Co. (1895) 27 N. S. 498; Boss v. Cross (1890) 17 Ont. App. Rep. 29; Black V. Ontario Wheel Co. (1890) 19 Ont. Rep. 578. The only cases, now of no authority whatever, in which it has been explicit- ly held that the master cannot be found liable unless he is shown to have had actual knowledge of the conditions, are McMillan v. Saratoga & W. B. Co. (1855) 20 Barb. 450; Anderson v. New Jersey S. B. Go. (1867) 7 Robt. 611; and, perhaps, Kunz v. Stuart (1865) 1 Daly. 431. * "The master is bound to use ordi- nary care in providing suitable struc- 264 MASTER AND SERVANT. [chap. X. In another class of cases the essence of the negligence imputed to the master is his failure to adopt such measures as a man of ordinary prudence would have adopted under the circumstances, for the purpose of keeping himself acquainted with the condition of the instrumental- ities of his business. The main problem to be then solved is whether the master has discharged his duty of inspection, and his duty to maintain in safe condition is relegated to the background. See the following chapters. "Ignorance itself is negligence in a case in which any proper in- quiry would have obtained the necessary information, and where the duty to inquire was plainly imperative."^ Confining our attention for the present to the first class of cases, tures and engines and proper servants ton v. Missouri, K. & T. R. Go. [1896] to carry on his business, and is liable 14 Tex. Civ. App. 222, 39 S. W. 174), to any of their fellow servants for his and that the duty of a master to pro- negligence in this respect. This care he vide for the safety of his servant in- can and must exercise, both in procur- eludes the obligation to protect him ing and in keeping or maintaining- such from latent or unseen defects, so far as servants, structures, and engines. If that end can be attained by reasonable he knows, or in the exercise of due care care (Edward Bines Lumber Go. v. might have known, that his servants are higas [1896] 68 111. App. 523); and incompetent, or his structures or en- that a master owes his servants the duty gines insufficient, either at the time of "to place them under no risks from im- procuring them, or at any subsequent perfect or inadequate machinery, or time, he fails in his duty." Gilman v. other material means or appliances, Eastern R. Go. (1866) 13 Allen, 433, known, or which, but for their negli- 440, 90 Am. Dec. 210. The legal impli- genee, would have been known, to them" cation is that "railroad companies will (Salter s v. Delaware <& H. Canal Go. have and keep a safe track, and adopt [1874] 3 Hun, 338, approved in Ellis v. suitable instruments and means with New York, L. E. & W. R. Go. [1884] 95 which to carry on their business. They N. Y. 546). can provide all these by the use of the 'Davis v. Detroit £ M. R. Go. (1870) requisite care and foresight, and, if they 20 Mich. 124, 4 Am. Rep. 364, per fail to do so, they are guilty of a Cooley, J. The same learned jurist has breach of duty, and are liable for the laid it down in his work on Torts, p. consequences. . . . Under this rule 556, that "the master may also be neg- it is held that the companies are liable ligent in not exercising ordinary care for the existence of all defects which to provide suitable and safe machinery they knew, or by reasonable care and or appliances, or in making use of those diligence might have known." Lewis which he knows have become defective, V. St. Louis & I. M. R. Go. (1875) 59 but the defects in which he does not ex- Mo. 495, 21 Am. Rep. 385. The liabil- plain to the servant, or in continuing ity of an employer for defective machin- ignorantly to make use of those which ery does not depend on the fact that the are defective, where his ignorance is due defects are latent or patent, but on the to a neglect to use ordinary prudence question of proper care in selecting the and diligence to discover defects" machinery and keeping it in repair, (quoted with approval in Louisville & Gunter v. Graniteville Mfg. Co. (1881) N. R. Go. v. Orr [1882] 84 Ind. 50). 15 S. C. 443. Compare the statements Compare the statements to the effect that the employer is not liable for an that the plaintiff must show that the injury caused by a "latent" defect; that master knew of the circumstances which is to say, one which is not discoverable created danger, or was "culpably igno- by a reasonable inspection (Essex rant" thereof (Huffman y. Chicago, R. County Electric Co. v. Kelly [1894] 57 /. c6 P. R. Co. [1883] 78 Mo. 50), and N. J. L. 100, 29 Atl. 427; Throckmor- that ignorance of a defect, in a case I i25j Knowledge as an element oe liabiliW. 265 viz. J those in which the knowledge which the master ought, as a pru- dent man, to have acquired, is treated merely as a factor of the com- prehensive duty to use proper care in providing reasonably safe in- strumentalities, we find that the cases turning upon the existence or absence of constructive notice stand on lines very nearly parallel to those involving actual notice. 125. Constructive knowledge; liability inferred from. — The doctrine that knowledge of abnormal dangers, which a master might have ac- quired by the exercise of reasonable care, stands, as an element of lia- bility, upon precisely the same footing as actual knowledge, is well established. "It is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure, when in fact the master knows, or ought to know, that it is not so, and if, from any negligence in this respect damage arises, the master is responsible."^ The question is not whether the master believes that the materials furnished by him are free from defects, but whether he is justified in such a belief.^ It is the duty of the employer to "furnish appliances free from defects discoverable by the exercise of ordinary care."* "The master is chargeable, not only with such knowledge as he ac- tually has, but also with that which he ought to have, by the exercise of reasonable care and diligence on his part in the performance of his duties as master."* "Where knowledge is essential to charge the master, negligent ig- norance is equivalent to knowledge."^ The implied agreement of a master is that the implements and ma- chinery furnished for the use of his servants "are sound and fit for the purpose intended, so far as ordinary prudence can discover."® "Knowledge may be established by showing actual cognizance of the defect, or knowledge imputed from the opportunities for actual where there was a duty to inquire, and " Texas £ P. R. Co. v. Archibald proper inquiry would have procured in- (1897) 170 U. S. 665, 42 L. ed. 1188, formation, constitutes negligence. Ches- 18 Sup. Ct. Eep. 777. apeake & N. R. Co. v. VenaUe (1901) * Houston v. Brush (1894) 66 Vt. 23 Ky. L. Rep. 427. 63 S. W. 35. 331, 29 Atl. 380. ^Paterson\. Wallace (1854) 1 Macq. '■ Schmidt \. Block (1886) 76 Ga. 823, H. L. Ca.s. 748, 751 (quoted as "recog- referring to 2 Thomp. Neg. p. 994; iiized law" in Berdler v. Buck's Stove Sheann. & Redf. Neg. § 93 ; Ocean S. S. & Ranqe Co. [1896] 136 Mo. 3, 37 S. Go. v. Mattheios (1890) 86 Ga. 418, 12 W. 115). S. E. 632. 'Roberts v. Smith (1857) 2 Hurlst. 'Lake Shore & M. S. R. Co. v. Mc- & N. 213, 26 L. J. Exch. N. S. 319, 3 Cormick (1881) 74 Ind. 440. Jur. N. S. 469. 266 MASTER Mt) SERVANT. [oha*. X. knowledge, arising from the duty to observe its machinery and appli- ances for the safety of its workmen."'^ ''Evansville d T. H. R. Co. v. Duel (1866) 13 Allen, 433, 90 Am. Dec. 210; (1892) 134 Ind. 156, 33 N. E. 355. See Holden v. FiicUurg R. Go. (1880) 129 also the following eases, to the same ef- Mass. 268, 37 Am. Rep. 343 ; Arkerson feet: Feltham v. England (1865) 4 v. Dennison (1875) 117 Mass. 407; Fost. & F. 460; 1Fe66 v. Rennie (1865) Davis v. Detroit & M. R. Go. (1870) 20 4 Fost. & F. 608 ; Union P. R. Co. v. Mich. 105, 4 Am. Rep. 364 ; Cook v. St. Daniels (1893) 152 U. S. 684, sub nom. Paul, M. & M. R. Co. (1885) 34 Minn. Union P. R. Co. v. Snyder, 38 L. ed. 45, 24 N. W. 311; TUel v. Kennedy 597, 14 Sup. Ct. Rep. 756; Northern P. (1901) 82 Minn. 142, 84 N. W. 657; R. Co. V. Herbert (1885) 116 U. S. 642, Doyle v. Missouri, K. & T. Trust Co. 29 L. ed. 755,6 Sup. Ct. Rep. 590; Union (1897) 140 Mo. 1, 41 S. W. 255; Bull- P. R. Go. V. O'Brien (1896) 161 U. S. master v. St. Joseph (1897) 70 Mo. 451, 40 L. ed. 766, 16 Sup. Ct. Rep. 618 App. 60; Laning v. New York C. R. Co. Affirming (1892) 1 C. C. A. 354, 4 U. S. (1872) 49 N. Y. 521, 10 Am. Rep. 417; App. 221, 49 Fed. 538; Louisville & N. Benzing v. Steinway (1886) 101 N. Y. H. Co. V. Johnson (1897) 27 C. C. A. 547, 5 N. E. 449; Hesketh v. New York 367, 53 U. S. App. 381, 81 Fed. 679; C. c6 H. R. R. Go. (1899) 37 App. Div. Jcnes V. Yeager (1872) 2 Dill. 64, Fed. 78, 55 N. Y. Supp. 898; Dunn v. Gon- Cas. No. 7,510; Ocean S. S. Go. v. Mat- ncll (1897) 21 Misc. 295, 47 N. Y. theios (1890) 86 Ga. 418, 12 S. E. 632; Supp. 185, Affirming (1897) 20 Misc. Chicago & A. R. Co. v. Shannon (1867) 727, 46 N. Y. Supp. 684; Cielfield v. 43 111. 338; Illinois Steel Co. v. Schy- Broivning (1894) 9 Misc. 98, 29 N. Y. manowski (1896) 162 111. 447, 44 N. E. Supp. 710; Chesson v. John L. Roper 876; Whitney