ajnrnpll ICam Btl^aal Klibtata Cornell University Library KFN5592.A94 Atreatise,.on,The,NewJort^^^^^^^^ 3 1924 022 876 662 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022876662 A TREATISE ON THE the new york Employers' Liability Act GEORGE W. ALGER Of the New York Bar. SAMUEL S. SLATER Of the New York Bar. ALBANY, N. Y. MATTHEW BENDER, 1903. B7^2g/ COFTBIGHT, 1903, Br MATTHEW BENDER. PREFi^CE. The condition of the New York law relating to actions for negligence brought by employees against employers was, for many years prior to the passage of the Employ- ers' Liability Act of 1902, a subject for consideration at the annual meetings of the Workingmen's Federa- tion of the State of New York, an organization which comprises the principal trades unions throughout the State, One of the writers of the present book (Mr. Alger), as counsel for the Federation, was employed to draft and present before the appropriate legislative committees a bill which should, if enacted into stat- ute, afford an injured workman, in a proper case, a better chance of obtaining redress for his injuries, by law. The bill which was first introduced on behalf of this organization in 1898, and in the sessions of 1899, 1900 and 1901, was much broader in its provisions than is the present law. This bill (and its successors in subsequent years) was vigorously opposed by the great carrying corporations and other large employers of labor, who sent eminent counsel to appear before the committees of the Senate and House to endeavor to prevent the bill from being favorably reported. As it became apparent in the passage of time and by repeated defeats for four successive years that a less radical measure must be drawn to obtain legislative sanction, owing to the powerful opposition arrayed against it, the present law was drafted rather as a iy Preface. foundation for future legislation than an act complete in itself, though enlarging materially the workman's common-law rights. There are undoubtedly many additions which could properly be made to the present law, and in that respect it merits, to a certain extent, the criticism which it receives from Mr. Leavitt in his excellent Code of Neg- ligence. It does, however, make important changes in the New York law which deserve careful consideration by counsel engaged either in the defence or prosecution of negligence cases. The book is, to a large extent, the result of the careful examination both of the New York common law and of the statute laws of other States, which was made imperative in order to meet the strenu- ous and skillful opposition which counsel for the great railway corporations made to the passage of any statr ute on this subject. Mr. Slater, who, as Senator from the Nineteenth Dis- trict, introduced the bill in the form in which it became a law, had the responsibility of its management in the Senate and House in the year of its final passage. The present book is the result of the knowledge of liability legislation which its joint authors have acquired in their work of promoting the passage of this law, and its purpose will have been accomplished if it affords the New York practitioner a reasonable amount of informal tion concerning the purpose and scope of this important statute as applied to the New York common law and the meaning of its terms as construed by the courts of other States as well as those of our own. November 1, 1903. T^BIiE OF CASES. Paoe. Adasken v. Gilbert, 165 Mass. 443 29, 68 Aetna Mills, Eoseback v., 158 Mass. 379 63, 70 Agnew V. Brooklyn Ry. Co., 20 Abb. N. C. 235 165 Ala. Gt. So. Ey. Co. v. Carroll, 97 Ala. 126 44 Ala. Gt. So. Ey. Co., Clement v., 127 Ala. 166, 28 So. 643 30, 41 Ala. Gt. So. Ey. Co. v. Cavis, ll9 Ala. 572 166 Ala. Gt. So. Ey. Co. v. Hall, 105 Ala, 599 89 Ala. Midland Ey, Co., Culver v., 108 Ala. 330 10, 67 Albert, lUnois Paper Co. v., 49 111. App. 363 , 119 Aldrieh, Le Moine v., 177 Mass. 89 119 AUenj Birmingham Ey. Co, v„ 99 Ala. 359 46, 55, 113 Allen, Lynch v., 160 Mass. 248-249 37, 40, 109 Allen V. Smith Iron Co., 160 Mass. 557 30, 41 Allen V. Stevens, 161 N. Y. 122 4 Alley, Dolan v., 153 Mass. 380 107 Allison v. Long Cove Flat Rock Co., 75 App. Div. 267 123 Am. Axe and Tool Co., Lampson v., 177 Mass. 144 119, 124 Amos v, Duify, 71 L. E. 21 138 American Dock & Iraprov. Co. v. Btaley, 40 Super. 539 170 Appel V. Buffalo, etc., Ey. Co., Ill N. Y. 550 122, 131 Appelby, Church v., 58 L. J. Q. B. 144, 5 L. T. E. 88 156 Arnold v. D. and H. Canal Co., 125 N. Y. 15 115, 120, 122 Arbuckle, Obanhein v., 80 App. Div. 465 126 Archibald, T. and P. E. Co., 170 U. S. 665 44 Arnold V. 111. Cent. E. E. Oo., 83 111. 273 14 Ashley v. Hart, 147 Mass. 575, 21, 29 Athol Eeservoir Co., McGinty v., 155 Mass. 183 32 Atlantic Novelty Mfg. Co,, Eaves v., 176 Mass, 369 63, 79 Atlas S, S, Co., Geoghan v., 146 N. Y. 369 50 Austin V. Goodrich, 49 N. Y. 266 162 Avery, State v., 44 Vt. 629 39 Babcock, Nor. Pac. E. E. Co. v., 154 U. S. 190 125 Babbitt, Crispin v., 81 N. Y. 518 48, 50, 51, 52 Eackus (E. W.) Lumber Co., Smith v.. 64 Minn. 447 127 Baddeley v. Lord Granville, 19 Q. B. D. 423, 9 Q, B. D. 435 15, 133 Bailey v. Everett, 132 Mass. 441 106, 109 Baird, Morrison v., 10 Sed. Sess. Cas. (4th series) 271 4 Baleh, Haas v., 12 U. S. App. 534, 6 C. C. A. 201 128 Baker, Smith v., 1891 A. C. 325 61, 144, 156 Baker, Veeder v., 83 N. Y. 156, 180 11 Ballard, Weblin v., 17 Q. B. D. 122, 125 4, 57, 112, 122, 139 Barry v. Biscuit Co., 177 Mass. 449 120 Barnard, Reynolds v., 46 N. E. 703, 168 Mass. 226 30, 66, 68, 84 vi Table of Cases. Faoe. Barkley v. Boston, 173 Mass. 311 ^3 Barry v. Port Jervis, 64 App. Div. 268 lOO Barr v. Shaw, 10 Hun, 580 1^5 Bartlett v. Cozier, 17 Johns. 438 102 Bass V. Comstock, 38 N. Y. 21 106 Bassett v. Conn. River Co., 150 Mass. 178 172 Baxter, Sullivan v., 1 50 Mass. 261 172 Bayard v. Smith, 17 Wend. 88 164 Baylor, Birmingham Ry. Co. v., 101 Ala. 488 67 B. C. M. Co., Harley v., 142 N. Y. 31 29 Bear Creek Mill Co. v. Parker, 134 Ala. 293 160 Beauregard v. Webb Granite Co., 100 Mass. 201. .106, 109, 109, 170, 171 Beattie, Mooney v., 180 Mass. 451 29 Bellamy, Thomas v., 126 Ala. 253 158 Bell Tel. Co., MeGuire v., 107 N. Y. 208 40 Bellegarde v. Union Bag & Paper Co., 83 N. Y. Supp. 925 57 Bennet, Southworth v., 58 N. Y. 65 170 Benzing v. Steinway, 101 N. Y. 552 116, 154 Berger v. Varrelman, 127 N. Y. 281 4 Berlin & Jones Env. Co., Sweeny v., 101 N. Y. 520 115, 122, 124 Berry, Wheeler v., 95 Mich. 250. 119 Beverly, Liffin v., 145 Mass. 549 107 Beique v, Hosmer, 160 Mass. 541 33 Bennet, Quarman v., 6 M. & W. 500 7 Benson v. Goodwin, 147 Mass. 239 » 51 Bent, Whitaker v., 167 Mass. 588 36 Berlin Mach. Wks., Ferris v., 90 Wis. 451 125 Blgelow, Plimpton v., 3 Civ. Pro. 182 167 Binion v. L. & N. Ry. Co., 98 Ala. 570 44 Birmingham Furnace & Mfg. Co. v. Gross, 97 Ala. 220 38 Birmingham R. R. Co. v. Allen, 97 Ala. 359 46, 55, 113 Birmingham R. R. Co. v. Baylor, 101 Ala. 488 67 Birmingham Battery & Metal Co., Williams v., 22 B. D. 338 138 Biscuit Co., Barry v., 177 Mass. 449 120 Bishop, Western, etc., Ry. Co. v., 50 Ga. 465 14, 119 Bjbjian v. Woonsoeket Rubber Co., 164 Mass. 214, 219 35 Blair v. R. R. Co., 66 N. Y. 313 16 Blake (Geo. F. Mfg. Co.), Healey v., 180 Mass. 270 89, 96, 103 Blank v. Hartshorn, 37 Hun, 101 165 Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439 132 Bohn V. Havemeyer, 114 N. Y. 296 115 Bogardus v. Trinity Church, Paige, 178 164 Boland v. L. & N. Ry. Co., 106 Ala. 641, 96 Ala. 626 45 Booth V. B. & A. Ry. Co., 73 N. Y. 38 154 Boston, Barkley v., 173 Mass. 311 93 Boston Electric Light Co., Willey v., 168 Mass. 40, 42 25 Boston, Johnson v., 118 Mass. 114 6 Boston Tow Boat Co., Coughlin v., 151 Mass. 92 9 Boston Tow Boat Co., Johnson v., 135 Mass. 209 35 Boston Tow Boat Co., Watts v., 161 Mass. 378 158 Boston, Saunders v., 167 Mass. 595 98, 99 Boston, May v., 150 Mass. 517 79 Boston, Canterbury v., 141 Mass. 215 106, 108 Bosworth, Brick v., 162 Mass. 334 110 Table of Oases. vii Faoe. Bowers v. Conn. River Co., 162 Mass. 312 41, 44 Bossout V. R., W. & O. Ry. Co., 32 St. Rep. 884 17 Boyd V. Brazil Block Coal Co., 50 N. E. Rep. 368 (Ind.) 132 Brady v. Ludlow Mfg. Co., 154 Mass. 468 168-169 Bradbury v. Goodwin, 108 Ind. 286 128 Brady v. Norcross, 174 Mass. 442 63 Bradley v. Brigham, 149 Mass. 141 172 Brannigan v. Robinson, 61 L. J. Q. B. D. 202 (1892), 1 Q. B. 344. 33, 34 Brazil Bloek Coal Co., Boyd v., 50 N. E. Rep. 368 (Ind.) 132 Bremer, Loughran v., 113 Ala. 509 10, 165 Brewer, Graves v., 4 App. Div. 327, 38 Supp. 566 131 Brewster, Chadwick v., 15 Supp. 598 128 Brick V. Bosworth, 162 Mass. 334 110 Brick V. Rochester Ry. Co., 98 N. Y. 211. 50 Bridges v. Tenn. C. & I. Co., 106 Ala. 641 45 Brigham, Bradley v., 149 Mass. 141 172 Brockton St. Ry. Co., Ladd v., 180 Mass. 454 Ill Brooks, Ga. Pae. Ry. Co. v., 84 Ala. 138 30, 39, 41, 140, 141 Bromley v. Covendish Spinning Co., 2 L. T. R. 881 34, 38 Brown v. Terry, 67 App. Div. 223, 73 Supp. 733 38 Brunswick, etc., Ry. Co., Pettus v., 35 S. E. 82 (Ga. 1900) 14 Brouillette v. Conn. River Co., 162 Mass. 198 44 Brooklyn, Merz v., 33 St. Rep. 517, 128 N. Y. 617 104 Brook V. Ramsden, 63 L. T. & S. 287, 55 J. P. 262. 137 Brooklyn Ry. Co., Agnew v., 20 Abb. N. C. 235 165 Brooklyn El. Ry. Co., Follett v., 91 Hun, 296, 36 Supp. 200 170 Biomfield v. Hughes, 128 Penn. 194 127 Broslin v. Kansas City, etc., Ry. Co., 114 Ala. 398 158 Brown, Daly v., 45 App. Div. 428 50 Brown v. Harmon, 21 Barb. 508 164 Brown, Rockwell v., 36 N. Y. 207 172 Brownell, O'Keefe v., 156 Mass. 133 39, 73, 86 Bruce v. Burr, 67 N. Y. 237 170 Buffalo P. & R. Ry. Co., Litchfield v., 76 Supp. 80, 73 App. Div. 1. 28 Buffalo R. W. Co., Appel v.. Ill N. Y. 550 122, 131 Buffalo, Reining v., 102 N. Y. 308 104, 161, 163 Buffalo, Curry v., 135 N. Y. 336 104 Buckley v. G. & P. Mfg. Co., 113 N. Y. 450 122 Burden, Corning v., 15 Howard U. S. 267 39 Burnham, Cogan v., 175 Mass. 391 30, 98, 99 Burrs v. Nichols Chem. Co., 65 App. Div. 424, 72 Supp. 919. .116. 124 Burns v. Washburn, 160 Mass. 457 29, 63 Buchanan v. Exch: Fire Ins. Co., 61 N. Y. 26 41 Burr, Bruce v., 67 N. Y. 237 170 Burton, Kansas City M. & B Ry. Co. v., 97 Ala. 240 67 Buse, Siedentop v., 21 App. Div. 592, 47 Supp. 809 128 Bushby v. N. Y., etc., Ry. Co., 107 N. Y. 374 46 Butler V. Townsend, 126 N. Y. 105 7, 27 Byrne v. Eastman's Co. of N. Y., 163 N. Y. 461 50 B. & A. R. R. Co., Mackin v., 135 Mass. 201 43 B. & A. R. R. Co., Doud v., 162 Mass. 185 70 B. & A. R. R. Co., Fitzgerald v., 156 Mass. 293 73 B. & A. R. R. Co., Leary v., 139 Mass. 580 119, 124 B. & A. R. R. Co., Booth v., 73 N. Y. 38 ; . . 154 Tiii Table of Oases. Paoe. B. & A. R. R., Daley v., 147 Mass. 101, 112 6 B. & M. R. Co., Shepard v., 158 Mass. 174 65 B. & M. R. Co., Young v., 168 Mass. 219 30, 45 B. & P. R. Co. V. Mackey, 157 U. S. 72 44 C, B. & Q. Ry. Co., Money v., 49 111. App. Ct. Rep. 105 14 C, C, C. & St. L. Ry. Co., Narramore v., 96 Fed. Rep. 298 132 0. V. R. R. Co., MeGovern v., 123 N. Y. 280, 287 47 Cairncioss v. Pewaukee, 78 Wis. 60 161 Cambridge, Coughlan v., 166 Mass. 268 6 Cambridge, Lvons v., 132 Mass. 534 99 Cambridge, MeCabe v., 134 Mass. 484 97, 106 Cambridge, McNulta v., 130 Mass. 275 99 Campbell, Flynn v., 160 Mass. 128 51 Campbell, L. & N. Ry. Co. v., 97 Ala. 147 44 Campbell v. L. & N. Ry. Co., 109 Ala. 520 44 Canney v. Walkeine, 51 C. C. A. 53, 113 Fed. 66, 58 L. R. A. 33. . . . 68 Canterbury v. Boston, 141 Mass. 215 106 Cape Ann Anchor Wks., Haskell v., 178 Mass. 485 32 Cappaso V. Woolfolk, 163 N. Y. 472 50 Carberry v. Sharon, 166 Mass. 32 106 Carlson v. N. W. Tel. Ex. Co.. 63 Minn. 438 53 Carpenter, Sheldon v., 4 N. Y. 579 172 Carris v. Ingalls, 12 Wend. 70 164 Carrigan v. Washburn & Moen Mfg. Co., 170 Mass. 79, 81 124 Carroll, Ala. Gt. So. Ry. Co. v., 97 Ala. 126 44 Carroll v. Wilkutt, 163 Mass. 221 29, 36, 37, 66 Carter v. Clarke, 78 L. T. 76 33 Carter v. Drysdale, 12 Q. B. D. 91 102, 105 Cashman v. Chase, 156 Mass. 342 63, 67, 69, 70, 73, 81, 85 Case, Haley v.. 142 Mass. 316-322 124 Cataract Con. Co., Mancuso v., 87 Hun, 619 50 Cavagnaro v. Clark, 171 Mass. 359 80 Cavendish Spinning Co., Bromley v., 2 L. T. R. 88 34, 38 Cent. Ins. Co., Seavey v., 11 Mass. 541 39 Cent. Vermont Ry. Co., MeGovern v.. 123 N. Y. 287 47, 154 Chadwick v. Brewster. 15 Supp. 598 128 Chaffee v. Erie R. R. Co., 73 Supp. 908, 68 App. Div. 578 28 Chambliss v. Mary Lee Coal Co., 104 Ala. 655 89 Chase. Cashman v., 156 Mass. 342 63, 67, 69, 70, 73, 81, 85 Chemical Paper Co.. Meunier v., 180 Mass. 109 ,. 128 Chenev, Hale v., 169 Mass. 268 Ill Chicago & Alton Ry. Co. v. May, 108 111. 288 53 Chicago, etc., Ry. Co. v. Pontius, 157 U. S. 209 18 Chickerlng, Marsh v., 101 N. Y. 396 122, 126, 128 Church V. Appelby, 58 L. J. Q. B. 144, 5 L. T. R. 88 156 Care v. N. Y., N. E. R. Co., 172 Mass. 211 9, 165, 168, 170, 172 Clapp v. Kemp, 122 Mass. 481 6 Clark, Cavagnaro v., 171 Mass. 359 80 Clark, Carter v., 78 L. T. 76 33 Clarke v. Holmes, 7 H. N. Exchequer Rep. 937 123, 127 Clarke v. Holmes, 7 H. & N. Exchequer Ren. 937 123, 127 Clark V. Merchants, etc.. Co., 151 Mass. 352 9 Clark V. N. Y., P. & B. R. Co., 160 Mass. 39 9 Table of Gases. ix Clark, O'Oonnell v., 22 App. Div. 466, 48 N. Y. Supp. 74 38, 128 Clark, Reese v., 146 Pa. 463 119 Clark, Wyman v., 180 Mass. 173 45 Clarkson v. Musgrave, 9 Q. B. D. 386 4, 105 Clements v. A. G. S. E. K. Co., 127 Ala. 166, 28 So. 643 isO, 41 Clinton v. Conroy, 158 Mass. SI8 168 Coal Creek Mining Co. v. Davis, 90 Tenn. 711 63 Coes Wrench Co., Jarvis v., 177 Mass. 170. 77 Cochran Chemical Co., Dane v., 164 Mass. 453 7 Coflfee V. N. Y., N. H. & H. Co., 155 Mass. 21, 22 41, 43, 57 Coger, Hussey v., 112 N. Y. 618 29, 50 Cogan V. Burnham, 175 Mass. 391 30, 98, 99 Cohn, Townsend v., 7 Civ. Pro. 57 , . . 166 Col. Midland Ry. Co. v. O'Brien, 16 Colo. 319 22 Col. Milling & Elevator Co. v. Mitchell, 26 Col. 284 9, 21 Cole, McLean v., 175 Mass. 5 33 Cole, Willis v., 9 Colo. 159 22 Cole V. Lawrence Mfg.. Co., 178 Mass. 295 77 Columbia (D. of) v. McElligott, 117 U. S. 621 127 Comp. Gen. Trans., Homer Rarasdell Co. v., 182 U. S. 406 19 Comstock, Bass v., 38 N. Y. 21 166 Coney Island & B. R. Co., Murphy v., 65 App. Div. 546, 73 Supp. 318 50 Conn. River Ry. Co., Brouilette v., 162 Mass. 198 44 Conn. River Mfg. Co., Prindible v., 160 Mass. 131 31, 64 Conn- River Ry. Co., Lawless v., 136 Mass. 1 32, 51 Conn. River Co., Basset v., 150 Mass. 178 172 Conn. River Ry. Co., Bowers v., 162 Mass. 312 41, 44 Connolly v. Hamilton Woolen Co., 153 Mass. 156 Ill CpnuDly v. Waltham, 156 Mass. 368 158 Connor, Admr., Hunt, Receiver, v., 26 Ind. App. Ct. 41, 59 N. E. 60 ; ; 6 Connors v. Lowell, 158 Mass. 336 107 Conroy v, Clinton, 158 Mass. 318 168 Continental Ins. Co., Walters v., 5 Hun, 343 170 Cook, Woodward Iron Co. v., 124 Ala. 349 6 Cook v. Ry. Co., 7? G*. 48 14 Copithorne v. Hardy, 173 Mass. 400 39 Cordage Co., Rooney v., ^61 Mass. 153 Ill Cornell, Davidson v., 132 N. Y. 228 122 Corning v. Burden, 15 Howard U. S. 267 39 ^(?tzenhausen, White v., 129 U. S. 329 4 Coughlan v. Cambridge, 166 Mass. 268 . 6, 110 Goughlan v. Boston Tow Boat Co., 151 Maes. 92 9 Counsel V. Hall, 145 Mass. 468 125 Cowles V. Richmond, etc., Ry. Co., 84 N. C. 309 53 Cowrey, Goslit v., 8 Super. Ct. 132 164 Cozier, Bartlett v., 17 Johns. 438 162 Crage, De Vito v., 165 N. Y. 378 28 Crawford, L. & N. Ry. Co. v., 89 Ala. 245 , 89 Creegan v. Marston, 126 N. Y. 568 29 Cripps V. Judge, 13 Q. B. D. 583. . , 37 Crispin V. Babbitt, 81 N. Y, 516 48, 50, 51, 52 Crocker, Kansas City M. & B. R. E. Co. v., 95 Ala. 412 89 Table op Cases. Paos. Cross V. Elmira, 86 Hun, 467 105 Crowley v. Cutting. 165 Mass. 436 67 Crown V. Orr, 140 N Y. 450 110, 117, 121, 123, 1.54 Crutchfield v. Richmond D. R. Co., 76 N. C. 320 119 Cullen V. Norton, 126 N. Y. 1 50, 60 Culver V. Ala. Midland E. Co., 108 Ala. 330 10, 67 Gumming N. P. A.. Steam Fitters & Helpers v., 170 N. Y. 315 19 Cunard S. S. Co., McCampbell v., 144 N. Y. 552 29, 36, 37, 66 Cunningham v. Lynn & Boston S. R. Co., 170 Mass. 208. .63, 73, 86, 111 Currey v. Buffalo, 135 N. Y. 336 370, 104 Curtice Bros. Co., Mull v., 74 App. Div. 561, 77 Supp. 813 122, 126 Cutting, Crowley v., 165 Mass. 436 67 Cutting, Harnois v., 174 Mass. 398 30, 32 D'Arles (Les Successurs) v. Freedman, 53 Supr. 518 162 D. and H. R. Co., Arnold v., 125 N. Y. 15 115, 120, 122 D., L. & W. R. R. Co., Williams v., 116 N. Y. 628 122, 131 D., L. & W. R. R. Co., McQuigan v., 122 N. Y. 618 120, 154 Dacey v. Old Colony R. Co., 151 Mass. 112, 118 9 Dale V. W. J. S. & L Co., 155 Mass. 1 5 Daley v. B. & A. R. Co., 147 Mass. 101, 112 6 Dalton V. Salem, 136 Mass. 278 109 Daly V. Schaff, 28 Hun, 314 28 Daly V. Brown, 45 App. Div. 428 50 Dane v. Cochran Chemical Co., 164 Mass. 453 7 Dantzler v DeBardeleben Coal & Iron Co., 101 Ala. 309 67, 73, 161 Dawson v. Troy, 49 Hun, 322 104 Davis, Ala. G. S. Ry. Co. v., 119 Ala. 572 166 Davis, Coal Creek Mining Co. v., 90 Tenn. 711 63 Davis V. Detroit, etc., Ry. Co., 20 Mich. 105 158 Davis, L. & N. R. Co. v., 91 Ala. 487 41, 44 Davis V. N. Y., N. H. & H. R. R. Co., 159 Mass. 532 60, 65, 76 Davidson v. Cornell, 132 N. Y. 228. 122 Dean v. Smith, 169 Mass. 569 68, 128 Dean Steam Pump Co., Geloneck v., 165 Mass. 202 26, 66, 68 De Bardeleben C. & I. Co., Lee v., 102 Ala. 628 89 De Bardeleben C. & L Co., Dantzler v., 101 Ala. 309 67, 73, Ifil DeBardeleben Coal & Iron Co., Lovell v., 90 Ala. 13 6, 10 De Forge v. N. Y., N. H. & H. R. R. Co., 178 Mass. 59 97 De Graff v. N. Y. C. & H. R. R. Co., 76 N. Y. 125 115 De Vito V. Crage, 165 N. Y. 378 28 De Young v. Irving. 5 App. Div. 449, 38 Supp. 1089 131 Debil V. N. Y. and E. R. Co.. 25 Barb. 182 173 Deforrest v. Jewett, 88 N. Y. 264 122 Demers v. Marshall, 178 Mass. 9 27 Denning v. Gould, 157 Mass. 563 1'8 Denver, etc., Ry. Co. v. Driscoll, 12 Col. 520 22 Denver T. & G. Ry. Co. v. Simson, 15 Col. 55 22 Detroit v. Davis, 20 Mich. 105 158 Detroit, etc., Ry. Co., Dewey v., 97 Mich. 329 43 Dewey v. Detroit, etc., Ry. Co., 97 Mich. 329 43 Diefendorf, Eno v., 102 N. Y. 720 167 Dickens v. N. Y. C. R. R. Co., 13 How. 228 165 Distr., etc., Ry. Co. v. Moore, 152 Ind. 350 132 Table op GasbS; xi Page. Dixoiii Pegram v., 55 L. J. Q. B. 447 * . 34 Dobbins v. Lang, 18J Mass. 397 119 Dolan V. Alley, 153 Mass. 380 97, 107 Donohue v. Old Colony E. R. Co., 153 Mass. 350 110 Donohue v. Washburn & Moen Mfg. Co., 169 Mass. 574 27, 111 Doriel, Wood v., T. L. R., vol. 2, 550 38 Dorney v. O'Neill, 49 App. Div. 8, 172 N. Y. 595 46 Doud V. B. & A. R. R. Co., 162 Mass. 185 70 Dowd V. N. Y., 0. & W. R. R., 170 N. Y. 459 118, 121, 129, 130 Downs, Murray v., 161 N. Y. 301 6 Douin V. Wanipanoag Mills, 172 Mass. 221 ; 73 Driscoll V. Fall River, 163 Mass. 105 106, 108 Driscoll, Denver, etc., Ry. Co. v., 12 Col. 520 22 Drommie v. Hogan, 153 Mass. 29 32, 106, 107 Drum V. N. E. Cotton Yarn Co., 180 Mass. 113 38, 45 Drysdale, Carter v., 12 Q. B. D. 91 102, 105 Duckworth, Lauter v., 48 N. E. 336 (Ind. Ap. 1896) 34, 38 Dudley (Earl pf), Griffiths v., 9 Q. B. D. 357. 4, 15 Duffy, Amos v., 71 L. R. 21 138 Durant v. Mining Co., 97 Mo. 62 132 Durant v. Gardner, 10 Abb. 445 170 Durkin v. Kingston Coal Co., 171 Pa. St. Rep. 193 19 East St. Louis Ry. Co. v. Eggman, 170 111. 538 132 Easthampton, Fortin v., 142 Mass. 486 102, 105, 106 Eastman, McHarg v., 7 Robert, 137 164 Eastman's Co. of N. Y., Byrne v., 163 N. Y. 461 50 Eaton v. N. Y. C. & H. R. R. Co., 163 N. Y. 391 44 Eaves v. Atlantic Novelty Mfg. Co., 176 Mass. 369 63, 79 Edison Co. v. Hudson, 66 111. App. 639 128 Edison Electric Co., Keenan v., 159 Mass. 379 158 Edwards v. Low, 63 App. Div. 451, 71 Supp. 1097 164 Eggman, East St. Louis Ry. Co. v., 170 111. 538 132 Eicholz V. Niagara Falls Hydr. P. & Mfg. Co., 68 App. Div. 441, 73 Supp. 842 128 Eidlitz, McLaughlin v., 50 App. Div. 518 28 Eldred v. Mackie, 178 Mass. 1 7 Electrical Co., Hamerschlag v., 16 App. Div. 185 162 Ellis V. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546 46 EHsbury y. N. Y., N. H. & H. R. R. Co., 172 Mass. 130 29, 45 Elmer v. Locke, 135 Mass. 575 32 Elraira, Cross v., 86 Hun, 467 105 Elston, Fleming, v., 171 Mass. 187 73, 87 Engel V. N. Y. T. & B. R. Co., 160 Mass. 260 40 Eno V. Diefendorf, 102 N. Y. 720 167 Erie Ry. Co., Chaffee v., 73 Supp. 908, 68 App, Div. 578 28 Erie Ry. Co., Gibson v., 63 N. Y. 449 120, 122, 124, 131 Estievenard, Pitts. & W. R. Canal Co. v., 53 Ohio, 43 119 Eureka Paper Co., Jlice v., 70 App. Div. 336, 75 Supp. 49 126, 127 Everett, B^iiley v., 132 Mass. 441 . .106, 109 Exch. Fire Ins. Co., Buchanan v., 61 N. Y. 26 41 I^re, Sievers v., 122 Fed. 734 23 xii Table op Oases. Faqk. Fairbanks Canning Co; v. Innes, 24 111. App. Ct. 33, 125 111. 510. . . 14 Fall River, DriseoU v., 163 Mass. 105 108 Farmer, Richmond & D. R. Co. v., 97 Ala. 141 89 Fellows, Gunn v., 41 Hun, 257 166 Ferries v. Berlin Mach. Wks., 90 Wis. 541 125 Finek, Howe v., 17 Q. B. 187 33, 37 Fink V. Slade, 66 App. Div. 105, 74 Supp. 578 28 Fitchburg Ry. Co., Thyng v., 156 Mass. 113 30, 33, 45 Fitzgerald v. B. and A. R. R. Co., 156 Mass. 293 73 Fitzgerald, O'Brien v., 29 Supp. 975 164 Fiske Wharf & Warehouse Co., McLean v., 158 Mass. 472 168 Flynn v. Campbell, 160 Mass. 128 51 Flynt Granite Co., Spalding v., 159 Mass. 587 44 Fleming v. Elston, 171 Mass. 187 73, 87 Flet V. Hunter Arms Co., 74 App. Div. 572, 77 Supp. 752 51, 74 Flike V. Ry. Co., 53 N. Y. 549 50 Flint V. Kelly, 180 Mass. 181 123 Floettl V. Third Ave. By. Co., 10 App. Div. 308, 41 Supp. 792 128 Foley V. Pettee Mach. Co., 149 Mass. 294, 296 103 Foley V. Mayor, etc., 1 App. Div. 586, 37 Supp. 465 104 Follett V. Brooklyn El. Ry. Co., 91 Hun, 296, 36 Supp. 200 170 Fortin v. East Hampton, 142 Mass. 486 102, 105, 106 Foye V. Patch, 132 Mass. 105 172 France, Yarmouth v., 10 Q. B. D. 647 4, 113, 138, 142, 144, 150 Frecdman, D'Arles (Les Successurs) v., 53 Supr. 518 162 Freeman v. Paper Mill Co., 70 Hun, 530, 24 Supp. 403 116 Fuller (Geo. A.) Co., Walters v., 74 App. Div. 388, 77 Supp. 681.. 50 Fuller V. Jewett, 80 N. Y. 46 45 Fuller, Malcolm v., 152 Mass. 160 58, 65, 68, 73, 74 Fuller V. N. Y., N. H. & H. R. R. Co., 175 Mass. 124 29, 119 Fulton Bag, etc., Co. v. Wilson, 89 Ga. 318 14 G. and P. Mfg. Co., Buckley v., 113 N. Y. 540 122 Gabrielson v. Waydell, 135 N. Y. 1 50, 90 Gall, McAulliif v., 180 Mass. 361 Ill, 119 Galloway v. Western Ry. Co., 57 Ga. 512 14 Galveston, etc., R. R. Co. v. Smith, 76 Tex. 611 53 Gardner v. N. E. Tel. Co., 170 Mass. 156 64, 68 Gardner v. Weymouth, 155 Mass. 595 , 102 Gardner, Durant v., 10 Abb. 445 170 Garfield & Proctor Coal Co., McClusky v., 180 Mass. 115 128 Gatti V. Prevesi, T. L. P., vol. 4, 487 102, 105 Geloneck v. Dean Steam Pump Co., 165 Mass. 202 26, 66, 68 Gen. S. N. Co., Shaffers v., 10 Q. B. D. 356 63 67 71 Geogan v. Atlas S. S. Co., 146 N. Y. 369 ! . . ' 50 George, Pierce v., 108 Mass. 78 39 Georgia Pacific R. R. Co. v. Brooks, 84 Ala. 138 30, 39, 41, 140, 141 Gerb v. Metropolitan Coll. Co., 63 Supp. 513, 30 Misc. 314 162 Gibbs V. Great Western Ry. Co., 12 Q. B. D. 208 4 Gibson v. Erie Ry. Co., 63 N. Y. 449 120, i22, 124, 131 Gilbert, Adasken v., 165 Mass. 443 29 68 Gilbert, 111. Cent. Ry. Co. v., 107 111. 354 '. .'.'.■.■.■. . '132 Oilman v. Great Eastern Ry. Co., 13 Allen, 440 51 Gmaehle v. Rosenberg, 40 Misc. 267, 81 Supp. 930 8 Table of Cases. xiii Page. Gmaehle v. Rosenberg, 80 Supp. 705, 80 App. Div. 541 11, 98, 104, 105, 167 Gmaehle v. Rosenberg, 83 App. Div. 339, 82 Supp. 366 19 Golden, Hudler v., 36 N. Y. 446 4 Golden v. Sieghardt, 33 App. Div. 161,53 Supp. 460 28 Goodnow V. Walpole Emery Co., 146 Mass. 261, 267 Ill Goodrich, Austin v., 49 N. Y. 266, 30 Misc. 314 162 Goodrich v. N. Y. C. & H. R. Ry. Co., 116 N. Y. 398 44, 45 Goodwin, Bradbury v., 108 Ind. 206 128 Goodwin, Benson v., 147 Mass. 237 51 Goslit V. Cowrey, 8 Supr. Ct. 132 164 Gotlieb v. N. Y., etc., Ry. Co., 100 N. Y. 462 43, 45 Gould, Denning v., 157 Mass. 563 128 Grace, Welch v., 167 Mass. 590 36 Grand Trunk Ry. Co., Willis v., 60 Maine, 488 14 Granite R. R. Co., Leslie v., 172 Mass. 468 : 32 Granville (Lord), Baddeley v., 19 Q. B. D. 423 15, 133 Great Eastern R. W. Co., Oilman v., 13 Allen, 44 51 Great Western Ry. Co., Gibbs v., 12 Q. B. D. 208 4 Graves v. Brewer, 4 App. Div. 327, 38 Supp. 566 131 Green v. Hauser, 31 St. Rep. 17 167 Green v. Smith, 169 Mass. 485 73, 78 Greenlee v. Southern Ry. Co., 30 Southeastern Rep. N. C. 115 132 Griffiths V. London & St. Katharine Docks Co., 13 .Q. B. D. 260. . . ' 144 Griffiths V. The Earl of Dudley, 9 Q. B. D. 357 4, 15 Grimaldi v. Lane, 177 Mass. 565 77 Gross, Birmingham Furnace & Mfg. Co. v., 97 Ala. 220 38 Groveland, Whitman v., 131 Mass. 553 106, 110 Gunn V. Fellowes, 41 Hun, 257 166 Gunn V. N. Y., N. H. & H. R. R. Co., 171 Mass. 417 25, 39, 40 Gustafson v. Washburn & Moen Mfg. Co., 153 Mass. 468 46 Haas V. Balch, 12 U. S. App. 539, 6 C. C. A. 201 128 Hale V. Cheney, 169 Mass. 268 Ill Haley v. Case, 142 Mass. 316, 322 124 Hall, Alabama G. S. R. R. Co. v., 105 Ala. 599 89 Hall, Counsel v., 145 Mass. 468 125 Hamilton Mfg. Co., Moody v., 159 Mass. 70 51 Hamilton Woolen Co., Connolly v., 153 Mass. 156 Ill Hand, McKay v., 168 Mass. 270 37 Handyside, Thrussel v., 20 Q. B. D. 359 138 Hankins v. N. Y.. L. E. & W. Ry. Co., 142 N. Y. 416. 50 Hamerschlag v. Electrical Co., 16 App. Div. 185 162 Hannigan v. L. & H. Ry. Co., 157 N. Y. 244 45, 115 Hannigan v. Smith, 28 App. Div. 176, 50 Supp. 845 124, 126 Hannibal & St. Jo. R. R. Co., Stephens v., 86 Missouri, 221 53 Hart, Ashley v., 147 Mass. 575 21 Hart V. Naumburg, 123 N. Y. 641 120 Hartshorn, Blank v., 37 Hun, 101 165 Hatch v. Peet, 23 Barb. 575 162 Hathaway, Ledwidge v., 170 Mass. 348 89, 99 Hatt v. May, 144 Mass. 186 158 Haske v. Samuelson, 12 Q. B. D. 30 4 Haskell v. Cape Ann Anchor Wks., 178 Mass. 485 32 xiT Table of Oases. Paob. Hasty V. Sears, 157 Mass. 123 J Hardy, Copithorne v., 173 Mass. 400 39 Harley V. B.C. M. Co., 142 N. Y. 31 29 Harmon, Brown v., 21 Barb. 508 Vn o. Harnois v. Cutting, 174 Mass. 398 3". 32 Harris, Sheffield v.. 101 Ala. 564, 569, 570 71 Hauser, Green v., 31 St. Rep. 17 loj Havemeyer, Bohn v., 114 N. Y. 296 116. 122 Hawley v. Nor. Cent. Ey. Co., 82 N. Y. 370 1^» Hayes v. Hyde Park, 153 Mass. 514 AA 'nV in* Healey v. Geo. F. Blake Mfg. Co., 180 Mass. 270 89, 96, 103 Healy V. Ryan, 25 Wk. Dig. 23, 116 N. Y. 657 125 Hearn v. Phillips, T. L. R., vol. 1, 475 105 Helfenstein v. Medart, 136 Mo. 575 Ifo Hendricks v. W., etc., Ry. Co., 52 Ga. 467 14 Henken, Persehke v., 44 Supp. 265 128 Herndon, Woodward Iron Co. v., 114 Ala. 191 166 Hernnan, Roesner v., 8 Fed. Rep. 782 14 Herrick, Minn. & St. Paul Ry. Co. v., 127 U. S. 210 18 Herring, Runt v., 2 Misc. 105 17 Heske v. Samuelaon, 12 Q. B. D. 30 25 Hickey v. Taafe, 105 N. Y. 26 116, 122 Higgins V. W. U. Tel. Co., 8 Misc. 435 7 Higgins (E. S.) Carpet Co. v. O'Keefe. 79 Fed. Rep. 810 131 Hingham Cordage Co., Kenny v., 168 Mass. 278 119 HiKhland Ave. & B. R. Co. v. Walters, 91 Ala. 442 119 Hills Co., Monyhan v., J4G Mass. 586 35 Hilton, Stringhain v.. Ill N. Y. 18S 27 Hissong V. Ry. Co., 91 Ala. 614 14 Hodges V. Standard Wheel Co., 152 Ind. 680 5 Hofnagle v. N. Y. C. & H. E. R. Co., 55 N. Y. 608 50 Hogan, Drommie v., 153 Mass. 29 32, 106, 107 Hogan v. Smith, 125 N. Y. 774 29 Holborn, Mobile & B. Ey. Co. v., 84 Ala. 133 5, 10, 55, 57 Holloway, Reynolds v., 14 L. T. R. 551 33 Hollsapple v. R., W. & O. R. E. Co., 86 N. Y. 275 16 Holmes, Clarke v., 7 H. N. Exchequer Eep. 937 123, 127 Holmes v. Clark, 10 Wendell, 405 125 Holrovd v. Town of Indian Lake, 75 App. Div. 197 161 Hookham, Ind. and Union Ey. Co. v., 63 Nor. E. Eep. 943 18 Hood, Howard v., 155 Mass. 391 51 Hope, Walthams v., 77 N. Y. 420 172 Hosmer, Beique v., 169 Mass. 541 33 Hough V. R. R. Co., 100 U. S. 255 124, 127 Howard v. Hood, 155 Mass. 391 51 Howe v. Fink, 17 Q. B. D. 187 33, 37 Howcry v. Lake Shore, etc., Ry. Co., 13 Misc. 341, 8 Supp. 1089. . . 128 Hudler v. Golden, 36 N. Y. 446 4 Hudson, Edison Co. v., 66 111. App. 639 128 Hudson Valley Knitting Co., Stevens v., 69 Hun, 375 125 Hughes, Brorafield v., 128 Penn. 194 127 Hunt, Receiver, v. Connor, Admr., 26 Ind App. Ct. 41, 59 N. E. 50 g Hunter Arms Co., Flet v., 74 App. Div. 572, 77 Supp. 752 51, 74 Table Op Cases. xv f'"- ■ Paok. Hussey V. Coger, 112 N. Y. 618 .29, 50 Hyde Park, Hayes v., 153 Mass. 514 60 Hyde, Stone v., 9 Q. B. D. 76 101 111. Cent. R. R. Co., Arnold v., 83 111. 273 14 111. Cent. Ry. Co. v. Gilbert, 107 111. 354 132 Illinois Paper Co. v. Albert, 49 111. App. 363 119 Illinois Steel Co. v. Mann, 170 111. 200 125 Indian Lake (Town of), Holroyd v., 75 App. Div. 197 161 Ind. & St. L. R. R. Co. v. Watson, 144 Ind. 20 127 Indianapolis & Union Ry. Co. v. Hookham, 63 N. E. Rep. 943 18 Ingalls, Carris v., 12 Wend. 70 164 Innes, Fairbanks Canning Co. v., 24 111. App. Ct. 33, 125 111. 510. . 14 Irving, De Young v., 5 App. Div. 449, 38 Supp. 1089 131 Jackson, Osborne v., 11 Q. B. D. 619 4, 64, 73 Jarvis v. Coes Wrench Co., 177 Mass. 170 77 Jenkins, Moyle v., 8 Q. B. D. 116, 118 103 Jewett, De Forrest v., 88 N. Y. 264 122 Jewett, Fuller v., 80 N. Y. 46 45 Johnson v. Boston, 118 Mass. 114 6 Johnson, Admr., v. R. R. Co., 86 Va. 975 14 Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203. .11, 98, 104, 105, 167 Johnson v. Boston Tow Boat Co., 135 Mass. 209 35 Jones, Memphis, etc., Ry. Co. v., 2 Head, 517 14 Joseph V. Geo. C. Whitney Co., 177 Mass. 176 72, 73 Joyce V. Worcester, 140 Mass. 245 32 J. S. & E. Ry. Co. V. Southworth, 135 111. 250 14 Judge, Cripps v., 13 Q. B. D. 518 37 Kaare v. Troy S. & I. Works, 139 N. Y. 369 120, 122 Kain v. Smith, 89 N. Y. 375 123 Kane v. Nor. Cent. R. R. Co., 128 U. S. 91 125, 127 Kansas City Ry. Co., Broslin v., 114 Ala. 398 158 Kansas City M. & B. R. R. Co. v. Crocker, 95 Ala. 412 89 Kansas City M. & B. Ry. Co. v. Burton, 97 Ala. 240 67 Kansas Pac. Ry. Co. v. Peavey, 29 Kas. 169 14 Keagan, Vitto v., 15 App. Div. 329 50 Keenan v. Edison Electric Co., 159 Mass. 379 158 Keeney v. Mill wall Dock Co., 8 Q. B. D. 482, 484 102, 103, 105 Keegan v. Western Ry. Co., 8 N. Y. 175 45 Keenan v. N. Y. C. R. R. Co., 145 N. Y. 190 50 Keith V. N. H. & W. R. Co., 140 Mass. 175 43 Kellard v. Rook, 19 Q. B. D. 585 73 Kelly, Flint v., 180 Mass. 181 123 Kelly V. Calumet Woolen Co, 177 Mass. 128 119 Kemp, Clapp v., 122 Mass. 481 6 Kennedy v. Lawrence, 128 Mass. 318 108 Kennedy v. Manhattan R. R. Co., 145 N. Y. 95. 121 Kennedy, McCann v., 167 Mass. 23 35 Kenney v. R. R. Co., 125 N. Y. 422 16 Kenney v. Shaw,. 133 Mass. 501 58 Kenny v. Hingham Cordage Co., 168 Mass. 278 119 Kerscheedt, O'Brien v., 29 N. Y. Supp. 973, 61 St. Rep. 470 164 xvi Table op Cases. Page. Kingston Coal Co., Durkin v., 171 Pa. St. Rep. 193 19 Kirk, Simone v., 57 App. Div. 461, 173 N. Y. 7 50 Kilkin v. N. Y. C, etc., R. R. Co., 76 App. Div. 529 130 Kimmer v. Webber, 151 N. Y. 417 28 King, Smith v., 74 App. Div. 1 123 Kings Windsor Cement Co., Moynehan v., 168 Mass. 450 40 Kirkpatrick v. N. Y. C, etc., Ry. Co., 79 N. Y. 240 45 Knight, Murray v., 156 Mass. 518 21, 168 Knight v. Overman Wheel Co., 174 Mass. 455 63, 68 Knisley v. Pratt, 148 N. Y. 372 116, 117, 122, 131, 132, 133, 155 Krall V. New York, 44 App. Div. 259, 60 Supp. 661 104, 168 Kyle, Tenn. C. & I. Co. v., 93 Ala. 1 45 L. and H. R. R. Co., Hannigan v., 157 N. Y. 244 45. 115 L. and H. R. R. Co., Siseo v., 145 N. Y. 296 115 L. & N. Ry. Co. V. Lahr, 86 Tenn. 335 53 L. & N. Ry. Co., Wilson v., 85 Ala. 269, 272 21 L. & N. Ry. Co. V. Davis, 91 Ala. 487 41 L. & N. Ry. Co. V. Pearson, 97 Ala. 211 44 L. & N. Ry. Co. V. Campbell, 97 Ala. 147 44 L. & N. Ry. Co., Campbell v., 109 Ala. 520 44 L. & N. Ry. Co., Perdue v., 10 Ala. 635 44 L. & N. Ry. Co. V. York, 128 Ala. 305 89 L. & N. Ry. Co., Binion v., 98 Ala. 570 44 L. & N. Ry. Co., Poland v., 106 Ala. 641 45 L. & N. Ry. Co., Poland v., 96 Ala. 626 45 L. & N. Ry. Co. V. Trammell, 93 Ala. 350 89 L. & N. Ry. Co. V. Markee, 103 Ala. 160 89 L. & N. Ry. Co. V. Crawford, 89 Ala. 245 89 L. & N. Ry. Co. V. Watson, 90 Ala. 68 89 Ladd V. Brockton St. Ry. Co., 180 Mass. 454 HI, 119 Lahr, L. & N. Ry. Co. v., 86 Tenn. 335 53 Lake Erie & Western Ry. Co., Tull v., 175 U. S. 348 18 Lake Shore, etc., Ry. Co., Lowery v., 13 Misc. 341, 8 Supp. 1089. . . 128 Lamson v. Am. Axe & Tool Co., 177 Mass. 144 119, 124 Lane, Grimaldi v., 177 Mass. 565 77 Lang, Dobbins v., 181 Mass. 397 119 Langley v. Wheelock, 181 Mass. 471 1 19 Laning v. N. Y. C, etc., Ry. Co., 49 N. Y. 521 50. 124 Lathem. Tate v., 1 Q. B. D. 502, 506 25. 46 Lauro v. Standard Oil Co., 74 App. Div. 4, 76 Supp. 800 7 Lauter v. Duckworth, 48 N. E. 336 (Ind. App. 1897) 34, 38 Law, Edwards v., 63 App. Div. 451, 71 Supp. 1007 164 Lawless v. Conn. River Ry. Co., 136 Mass. 1 32, 51 Lawrence, Kennedy v., 128 Mass. 318 108 Lawrence Mfg. Co., Cole v., 178 Mass. 295 77 Lee v. De Bardeleben Coal & Iron Co., 102 Ala. G28 89 Leep V. Ry. Co.. 58 Arkansas, 407 18 Leary v. B. & A. R. Co., 139 Mass. 580 119, 124 Ledwidge v. Hathaway, 170 Mass. 348 89. 99 Leeds v. N. Y. Tel. Co., 64 App. Div. 484. 72 Supp. 250 164 Lehmaier, Marino v., 173 N. Y. 530 133 Le Moine v. Aldrich, 177 Mass. 89 119 Leslie v. Granite R. R. Co.. 172 Mass. 468 32 Table of Cases. xvii Page. Ijffin V. Beverly, 145 Mass. 549 107 Lilly V. N. Y., etc., Ry. Co., 107 N. Y. 566, 573 46 Litchfield Coal Co. v. Taylor, 81 111. 590 132 Litchfield v. Bufl'alo P. & R. Ry. Co., 73 App. Div. 1, 76 Supp. 80. . 28 Littlewood v. Mayor, 89 N. Y. 24 173 Lloyd, O'Brien v., 43 N. Y. 248 172 Locke, Elmer v., 135 Mass. 575 32 Lockwood V. R. R. Co., 17 Wal. 359 16 Long Cove Flat Rock Co., Allison v., 75 App. Div. 267 123 Louisville Ry. Co. v. Orr, 91 Ala. 548 14 Loughran v. Bremer, 113 Ala. 509 10, 165 Logan, McNamara v., 100 Ala. 187 46 Long Island Ry. Co., MeCosker v., 84 N. Y. 77 50, 76, 82 London & St. Katharine Docks Co., Griffiths v., 13 Q. B. D. 260... 144 London & Sou. West. Ry. Co., Osborne v., 21 Q. B. D. 221 138 Look, O'Brien v., 171 Mass. 36 65, 73 Louisville, etc., Ry. Co. v. Davis, 91 Ala. 487 41, 44 Loughlin v. State, 105 N. Y. 159 50 Louis v. N. Y., N. E. Ry. Co., 153 Mass. 73 124 Lovell V. De Bardeleben Coal Co., 90 Ala. 13 6, 10 Lowell Bleachery, Roach v., 181 Mass. 480 75 Lowell, Connors v., 158 Mass. 336 107 Lowell, Shea v., 132 Mass. 187 106 Ludlow Mfg. Co., Brady v., 154 Mass. 468 168, 169 Lynch v. Allen, 160 Mass. 248 29, 34, 35, 37, 40, 109 Lynn & Boston S. R. Co., Cunningham v., 170 Mass. 298. .63, 73, 86, 111 Lyons v. Cambridge, 132 Mass. 534 99 Lyons, N. Y., L. E. & W. Ry. Co. v., 119 Penn. St. 324 158 Maekey, B. & P. R. Co. v., 157 U. S. 72 44 Mackey, Missouri Ry. Co. v., 127 U. S. 205 18 Mackie, Eldred v., 178 Mass. 1 7 Mackin v. B. & A. R. R. Co., 135 Mass. 201 43 Mahoney v. N. Y. & N. E. Ry. Co., 160 Mass. 573 63, 68 Mahoney v. Oil Co., 76 Hun, 579, 28 Supp. 196 51 Malcolm v. Fuller, 152 Mass. 160 58, 65, 68, 73, 74 Mancuso v. Cataract Constr. Co., 87 Hun, 519 50 Manhattan Ry. Co., Kennedy v., 145 N. Y. 95 121 Mann, Illinois Steel Co. v., 170 111. 200 125 Manufg. Co. v. Morrisey, 40 Ohio, 148 125 Mapes Reese Con. Co., Tremblay v., 169 Mass. 284 128 Marean v. N. Y., S. & W. R. Co., 167 Pa. 220 119 Marino v. Lehmaier, 173 N. Y. 530 133 Markee, L. & N. Ry. Co. v., 103 Ala. 160 89 Marsh v. Chickering, 101 N. Y. 396 122, 126, 128 Marshall, Demera v., 178 Mass. 9 27 Marston, Creegan v., 126 N. Y. 568 29 Mary Lee Coal Co., Chambliss v., 104 Ala. 655 89 Masters v. Troy, 50 Hun, 485 105 Matter of Meekin, 164 N. Y. 152 173 May, Chic. & Alton Ry. Co. v., 108 III. 280 53 May, Hatt v., 144 Mass. 186 158 May V. Boston, 150 Mass. 517 99 May V. Whittier Mach, Co., 154 Mass. 29 34, 168 xviii Table of Cases. Page. Mayor, etc., Foley v., 1 App. Div. 586, 37 Supp. 465 104 Mayor, etc., White v., 15 App. Div. 442 104 Mayor, Missano v., 160 N. Y. 123 97, 105 McAulIiffe V. Gall, 180 Mass. 361 Ill, 119 MeCabe v. Cambridge, 134 Mass. 484 97, 106 McCabe v. Shields, 175 Mass. 438 64, 80 McCampbell v. Cunard S. S. Co., 144 N. Y. 552 29 McCann v. Kennedy, 167 Mass. 23 35 McCarthy v. Washburn, 42 App. Div. 252, 58 Supp. 1125 120 McCauley v. Norcross, 155 Mass. 584 73, 82, 83 McClusky V. Garfield & Proctor Coal Co., 180 Mass. 115 128 McCosker v. Long Island Ry. Co., 84 N. Y. 774 50, 76, 82 McCoy V. Inhabitants of Westbury, 172 Mass. 504 76 McEIligott V. Columbia (D. of ), 117 U. S. 621 127 McGahey v. Nassau El. Co., 51 App. Div. 281 173 McGiffin V. Palmers S. & J. Co., 10 Q. B. D. 5 25, 35, 37 McGinty v. Athol Reservoir Co., 155 Mass. 183 32 McGovern v. C. V. R. R. Co., 123 N. Y. 280 47, 154 McGuire v. Bell Telephone Co., 167 N. Y. 208 40 McHale, MeMahon v., 174 Mass. 320 31 McHarg v. Eastman, 7 Robert, 137 164 McKay v. Hand, 168 Mass. 270 (1897 ) 37 McKee v. Tourtellotte, 167 Mass. 69 128 McLean v. Cole, 175 Mass. 5 32 McLean v. Fiske Wharf & Warehouse Co., 158 Mass. 472 168 McLaughlin v. Eidlitz, 50 App. Div. 518 28 McMahon v. McHale, 174 Mass. 320 31 McNamara v. Logan, 100 Ala. 187 46 McNulta v. Cambridge, 130 Mass. 275 99 McPhee v. Scully, 163 Mass. 216 5, 61, 68 McQuigan v. D , L. & W. R. R. Co., 122 N. Y. 618 1^0 Mechanics Mills, Ryalls v., 150 Mass 190-194 4, 5, 9, 21, 32, 51, 57 Medart, Helfenstein v., 136 Mo. 575 128 Memphis, etc., Ry. Co. v. Jones, 2 Head, 517 14 Merchants Co., Clark v., 151 Mass. 352 9 Merchants Woolen Co., Reynolds v., 168 Mass. 501 29 Merry, Wilson v., L. R., 1 Sc. App. 326 20 Merz v. Brooklyn, 128 N. Y. 617, 33 St. Rep. 517 104 Metcalf. Scarflr v., 107 N. Y. 211 50 Metropolitan Collecting Co., Gerb v., 30 Miac. 314. 63 Supp. 513.. 162 Metropolitan Dist. Ry. Co., Woodley v., 2 Exch. Div. 384 144 Meunier v. Chemical Paper Co., 180 Mass. 109 128 Meyer, Littlewood v., 89 N. Y. 24 173 Michael v. Stanton, 3 Hun, 462 7 Millard v. West End Street R. R. Co., 173 Mass. 512 82 Miller v. N. Y., N. H. & H. Ry. Co., 175 Mass. 263 29, 45 Mills V. Parkhurst, 126 N. Y. 89 170 Millwall Dock Co., Keeney v., 8 Q. B. D. 482 102, 103, 105 Mining Co., Durant v., 97 Mo. 62 132 Minn. & St. Paul R. R. Co. v. Herrick, 127 U. S. 210 18 Missano v. Mayor, 160 N. Y. 123 97, 105 Missouri Ry. Co. v. Mackey. 127 U. S. 205 18 Mitchell, Col. Milling & El. Co. v., 26 Colo. 284 9, 21 Mitchell V. Worcester, 129 Mass. 625, 529 98, 99 Table of Oases. xix Page. Mitchell V. Penna. K. R. Co., 1 Am. Law Reg. 717 14 Mo. Pae. Ry. Co. v. Williams, 75 Tex. 4 53 Mo. Pac. Ry. Co., Bluedorn v., 108 Mo. 439 132 Mo. Pac. Ry. Co., Rush v., 36 Kan. 129 119 Mobile, etc., Ry. Co. v. Holborn, 84 Ala. 133 5, 10, 55, 57 Mobile, etc.. Ry. Co., Smoot v., 67 Ala. 13 43 Moody V. Hamilton Mfg. Co., 159 Mass. 70 51 Moon V. Richmond Ry. Co., 78 Va. 745 53 Mooney v. Seattle, 180 Mass. 451 29 Moore, Distr., etc., Ry. Co. v., 152 Ind. 350 132 Moore, Rodwell v., 180 Mass. 590 45 Moore, Southern Ry. Co. v., 128 Ala. 434, 29 So. 659 30, 41, 89 Money v. C, B. & Q. Ry. Co., 49 111. App. Ct. Rep. 105 14 Monyhan v. Hills Co., 140 Mass. 58li 35 Morris v. Walworth Mfg. Co., 181 Mass. 326 37 Morrisey, Mfg. Co. v., 40 Ohio, 148 ; 125 Morrison v. Baird, 10 Sc. Sess. Cas., 4th series, 271 4 Morse, Veginan v., 160 Mass. 142 11, 43, 46, 104 Moyle V. Jenkins, 8 Q. B. D. 116, 118 103 Moynihan v. Kings Windsor Cement Co., 168 Mass. 450 40 Mull V. Curtis Bros. Co., 74 App. Div. 561, 77 Supp. 813.... 122, 126 Murphy v. Coney Id. & B. R. Co., 65 App. Div. 546, 73 Supp. 18. . . 50 Murray v. Downes, 161 N. Y. 301 6 Murray v. Knight, 156 Mass. 518 21, 168 Murray v. Rivers, 174 Mass. 46 79 Musgrove, Clarkson v., 9 Q. B. D. 386 4, 105 Mynard v. Syracuse R. R. Co., 71 N. Y. 180 16 Narramore v. C., C, C. & St. L. R. R. Co., 96 Fed. Rep. 298 132 Nash v. South Hadley, 145 Mass. 105 93 Nassau, MoGahey v., 51 App. Uiv. 281 173 Nat. Pro. Steam Fitters & Helpers v. Cummings, 170 N. Y. 315 19 Nauraburg, Hart v., 123 N. Y. 641 120 Neal, O'Connor v., 153 Mass. 281 34, 37 Neubauer v. R. R. Co., 101 N. Y. 607 50 New Eng. Fibre Co., Ward v., 154 Mass. 419 7 New Eng. Cotton Yarn Co., Drum v., 180 Mass. 113 38, 45 New Eng. Tel. Co., Gardner v., 170 Mass. 156 64, 68 Newark Ins. Co., Velie v., 12 Abb. N. G. 309 165, 170 New York C. & H. R. R. Co.j Wright v., 25 N. Y. 566 122 New York, O. & W. R. R. Co., Doud v., 170 N. Y. 459.. 118, 121, 129, 130 New York C. R. R. Co., Laning v., 49 N. Y. 521 124 New York C. R. R. Co., Kilkin v., 76 App. Div. 529 130 New York C. & H. Ry. Co., Dickens v., 13 Hun, 228 165 New York C. R. R. Co., Keenan v., 145 N. Y. 190 50 New York C. & H. R. R. Co., Hofnagle, 55 N. Y. 608 50 New York C. & H. R. R. Co., Davis v., 159 Mass. 532 ..60, 65, 76 New York C. & H. R. R. Co., Nicholas v., S9 N. Y. 370 16 New York C. & H. R. R. Co., Goodrich v., 116 N. Y. 398 44, 45 New York C. & H. R. R. Co., Eaton v., 163 N. Y. 391 44 N. Y. C. & H. R. R. Co., DeGraff v., 76 N. Y. 125 113 New York C. & H. R. R. Co., Kilpatrick v., 79 N. Y. 240 45 New York, etc., Ry. Co., Lilly v., 107 N. Y. 566, 573 46 New York, etc., Ry. Co., Gottlieb v., 100 N. Y. 462 43, 45 XX Table of Cases. Faob. New York, etc., Ey. Co., Tanner v., 180 Mass. 572 61, 128 New York, etc., E. E. Co., Bushby v., 107 N. Y. 374 46 New York, L. E. & W. Ey. Co., Powers v., 98 N. Y. 274 122, 131 New York, L. E. & W. v. Lyons, 119 Penn. St. 324 158 New York, L. E. & W., Ellis v., 95 N. Y. 54fi 46 New York, L. E. & W., Hankins v., 142 N. Y. 410 60 New York & N. E. Ry. Co., Weatoott v., 153 Mass. 400 124 New York & N. E. Ey. Co., Mahoney v., 100 Mass. 573 03 New York & N. E. Ey. Co., Clare v., 172 Mass. 211.9, 165, 168, 170, 172 New York, N. H. & H. Ey. Co., Oldfield v., 14 N. Y. 310 105 New York, N. H. & H. Ry. Co., Shea v., 173 Mass. 177 97 New York, N. H. & H. Ey. Co. v. O'Leary, 93 Fed. 737 21 New York, N. H. & H. Ey. Co., Gunn v., 171 Mass. 417 25, 39, 40 New York, N. H. & H. Ey. Co., Miller v., 175 Mass. 203 29, 45 New York, N. H. & H. Ey. Co., Ellsbury v., 172 Mass. 130 29, 45 New York, N. H. & H. Ey. Co., Coffee v., 155 Mass. 21. .41, 43, 44, 6T New York, N. H. & H. Ry. Co., Fuller v., 175 Mass. 424 29, 119 New York, N. H. & H. Ry. Co., DeForge v.. 178 Mass. 59 9T New York P. & B. R. R. Co., Clark v., 100 Mass. 39 9 New York, Krall v., 44 App. Div. 259, 60 Supp. 001 104, 108 New York, Eeid v., 97 N. Y. 021 108 New York Eubber Co., Simpson v., 80 Hun, 415 132 New York, Shaw v., 82 Supp. 44, 83 App. Div. 212 07, 105 New York, Sheehy v., 100 N. Y. 139 97, 105 New York Tel. Co., Leeds v., 04 App. Div. 484, 72 Supp. 250 104 New York & E. R. Co., Debbil v., 25 Barb. 182 17J New York & N. E. Ry. Co., Louis v., 153 Mass. 73 124 New York & Texas S. S. Co., Tully v., 10 App. Div. 403 50 N. H. & W. R. Co., Keith v., 140 Mass. 175 43 N. Y., S. & W. E. Co., Marean v., 107 Pa. 220 119 Niagara Falls Hydraulic Mfg. Co., Eiehols v., 73 Supp. 842, 08 App. Div. 441 128 Nicholas v. N. Y. C. E. B. Co.. 89 N. Y. 370 16 Nichols Chem. Co., Burns v., 72 Supp. 919, 65 App. Div. 424 116 Nonantum Worsted Co., White v., 163 Mass. 210 5 Nor. Cent. Ey. Co., Hawley v., 82 N. Y. 370 128 Nor. Cent. Ry. Co., Kane v., 128 U. S. 91 125, 12T Nor. Pnc. Ry. Co., Tynberg v., 39 Minn. 15 126 Nor. Pac. Rv. Co. v. Babcock, 154 U. S. 190 125 Nor. West. Tel. Ex. Co., Carlson v., 63 Min. 438 53 Noreross, Brady v., 174 Mass. 442 03 Norcross, McCaulay v., 155 Mass. 584 73, 82, 83 Norton, Cullen v., 126 N. Y. 1 50, 60 Nute-Hallett Co., O'Brien v., 177 Mass. 422 80, 128 Obanhein v. Arbuckle, 80 App. Div. 405 126 O'Brien v. Fitzgerald, 29 Supp. 975 104 O'Brien v. Kerscheedt, 29 N. Y. Supp. 973, 01 St. Rep. 470 104 O'Brien v. Lloyd, 43 N. Y. 248 172 O'Brien v. Look, 171 Mass. 30 65, 73 O'Brien v. Nute-Hallett Co., 177 Mass. 422 80, 128 O'Brien, Col. Midland R. R. Co. v., 10 Colo. 319 22 O'Brien, Reilly v., 53 Hun, 147 50 O'Brien v. Eideout, 101 Mass. 170 63, 68 Table op Cases. xxi Paob. O'Brien v. West End R. R. Co., 173 Mass. 105 82 O'Connell v. Clark, 22 App. Div. 466, 48 Supp. 74 38, 128 O'Connor v. Neal, 153 Mass. 281 34, 37 Oil Co., Mahoney v., 76 Hun, 579, 28 Supp. 196 51 O'Keefe v. Hrownell, 156 Mass. 133 37, 73, 86 O'Keefe, E. S. Higgins Carpet Co. v., 79 Fed. Rep. 810 131 0"Leary, O'Neal v., 164 Mass. 387 69 O Leary, N. Y., N. H. & H. Ry. Co. v., 93 Fed. 737 21 O'Malley v. South Boston Gas Light Co., 158 Mass. 135 110 O'Neal V. O'Leary, 164 Mass. 387 69 O'Neil, Swift & Co. v., 187 111. 337 125 O'Neill. Dorney v., 49 App. Div. 8, 172 N. Y. 595 46 Old Colony R. R. Co., Dacey v., 151 Mass. 112, 118 9 Old Colony R. R. Co., Donohue v., 153 Mass. 356 110 Old Colony R. R. Co., StefFe v., 1.56 Mass. 262 104, 161 Old Colony R. R. Co., Trask v., 156 Mass. 298 40 Oldfield V. N. Y., N. H. & H. Ry. Co., 14 N. Y. 310 165 Onondaga Bank, Schott v., 49 App. Div. 503 50 Orr, Crown v., 140 N. Y. 450 116, 117, 121, 123, 154 Orr, Louisville R. R. Co. v., 91 Ala. 548 14 Osborne v. Jackson, 11 Q. B. D. 619 4, 64, 73 Osborne v. London Sou. West. Ry. Co., 21 Q. B. D. 221 138 Overman Wheel Co., Knight v., 174 Mass. 455 63, 68 Pabst, Schlitz v., 57 Minn. 303 127 Pae. Ry. Co., Rush v., 36 Kan. 129 119 Palmer, Wyllie v., 137 N. Y. 257 7 Palmer's S. & J. Co., MeGiflin v., 10 Q. B. D. 5 25, 35, 37 Pantzer v. Tilly Foster Mining Co., 99 N. Y. 306 116, 154 Paper Mill Co., Freeman v., 70 Hun, 530, 24 Supp. 403 116 Parker, Bear Mill Creek Co. v., 134 Ala. 293 160 Parkhurst, Mills v., 126 N. Y. 89 170 Patch, Foye v., 132 Mass. 105 172 Patterson v. Pittsburg, etc., Ry. Co.. 76 Penn. St. 389 125 Patton V. Western Ry. Co., 96 N. C. 455 63 Paul, St. Louis Ry. Co. v., 64 Ark. 83 18 Pearson, Louisville & N. R. Co., 97 Ala. 211 44 Peavey. Kan. Pac. Ry. Co. v., 29 Kas. 169 14 Peet. Hatch v., 23 Barb. 575 162 Pegram v. Dixon, 55 L. J. Q. B. 447 34 Penna. R. R. Co., Mitchell v., 1 Am. Law Reg. 717 14 Perdue v. L. & N. Rv. Co.. 10 Ala. 535 44 Perry v. Rogers, 157 N. Y. 351 50 Perschke v. Henken, 44 Supp. 265 128 Pettee Mach. Co., Foley v., 149 Mass. 294 103 Pettus v. Brunswick, etc., R. Co., 35 S. E. 821 (Ga. 1900) 14 Pewaukee, Cairncross v., 78 Wis. 66 161 Pizzi V. Ried, 72 App. Div. 162 164 Phillips, Hearn v., T. L. R., vol. 1, 475 105 Pierce v. George, 108 Mass. 78 ; . . 39 Piper, Webber v., 109 N. Y. 469 29 Pioneer M. & W. Co. v. Thomas, 133 Ala. 279 30 Pittsburg & W. R. Canal Co. v. Estievenard 52 Ohio, 43 119 Plimpton V. Bigelow, 3 Civ. Pro. 182. 167 xxii Table op Oases. Faob. Pontius, Chic, etc., Ey. Co. v., 157 U. S. 209 18 Port Chester, Williams v., 76 Supp. 631, 72 App. Div. 505 100 Port Jervis, Barry v., 64 App. Div. 268 100 Post, Woodbury v., 158 Mass. 140 166 Powers V. N. Y., L. E. & W. Ry. Co., 98 N. Y. 274 122, 131 Pratt, Knisley v., 148 N. Y. 372 116, 117, 122, 131, 132, 133, 154 Prevesi v. Gatti, T. L. P., vol. 4, 487 102, 105 Prindible v. Conn. River Mfg. Co., 160 Mass. 131 31, 64 Purdy V. R., W. & O. R. R. Co., 125 N. Y. 209 16 Quarman v. Bennet, 6 M. & W. 500 / 7 (iuartermaine, Thomas v., 18 Q. B. D. 685 4, 57, 113, 123, 138, 141, 142, 143, 144, 146, 150 Quirin, Seheir v., 77 App. Div. 624 130 Railroad Co., Blair v., 66 N. Y. 313 16 Railroad Co., Coffee v., 155 Mass. 1 41 Railroad Co., Cook v., 72 Ga. 48 14 Railroad Co., Flike v., 53 N. Y. 549 50 Railroad Co., Hissong v., 91 Ala. 514 14 Railroad Co., Hough v., 100 U. S. 255 124, 126 Railroad Co., Kenney v., 125 N. Y. 422 16 Railroad Co., Laning v., 49 N. Y. 521 60 Railroad Co., Leep v., 58 Ark. 407 18 Railroad Co., Lockwood v., 17 Wal. 359 16 Railroad Co., Neubauer v., 101 N. Y. 607 50 Railroad Co., Johnson, Admr., v., 86 Va. 975 14 Railroad Co. v. Spangler, 44 Ohio St. Rep. 471 14 Ramsdell (Homer) Co. v. Comp. Gen. Tians., 182 U. S. 406 19 Ramsden, Brook v., 63 L. T. & S. 287, 55 J. P. 262 137 Rathbun, Smith v., 22 Hun, 150 165 Reed v. Kew York, 97 N. Y. 621 108 Reese v. Clark, 146 Pa. 465 119 Regan v. Donovan, 159 Mass. 1 40 Reilly v. O'Brien, 53 Hun, 147 50 Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40 171 Reining v. Buffalo, 102 N. Y. 308 104, 161, 162 Reynolds v. Barnard, 46 N. E. 703, 168 Mass. 226 ( 1897 ) . 30, 66, 68, 84 Reynolds v. Hoiloway, 14 T. L. R. 551 33 Reynolds v. Merchants Woolen Co., 168 Mass. 501 29 Rice v. Eureka Paper Co., 70 App. Div. 330, 75 Supp. 49 126 Rice v. Eureka Paper Co., 174 N. Y. 385 126, 127 Richmond, etc., Ry. Co., Cowles v., 84 N. C. 309 63 Richmond, etc., Ry. Co., Moon v., 78 Va. 745 63 Rideout, O'Brien v., 161 Mass. 170 63, 68 Richmond D. R. Co., Crutchfield v., 76 N. C. 320 119 Richmond & D. R. Co. v. Farmer, 97 Ala. 141 89 Ried, Pizzi v., 72 App. Div. 162 164 Riley v. Tucker, 179 Mass. 190 30 Rima v. Rossie Iron Wks., 120 N. Y. 433 46 Riou V. Rockport Granite Co., 171 Mass. 162 63, 85 Rivers, Murray v., 174 Mass. 46 79 Roach, Johnson v., 83 App. Div. 357, 82 Supp. 203. .11, 98, 104, 105, 16T Table of Cases. xxiii Page. Hoach V. Lowell Bleachery, 181 Mass. 480 , . 75 Robbins, Rochester Ry. Co. v., 133 N. Y. 242 163 Robinson, Brannigan v., 61 L. J. Q. B. 202 (1892), 1 Q. B. 344. .33, 34 Rochester, Werner v., 77 Hun, 33 103, 108 Rochester Ry. Co. v. Robbins, 133 N. Y. 242 163 Rochester Ry. Co., Brick v., 98 N. Y. 211 50 Rockport Granite Co., Riou v., 171 Mass. 162 63 Rockwell V. Brown, 36 N. Y. 207 172 Rodwell V. Moore, 180 Mass. 590 ., 45 Rogers, Perry v., 157 N. Y. 251 50 Rome (City of ) , Stedraan v., 88 Hun, 279 105 Rook, Kellard v., 19 Q. B. D. 585 73 Roohey v. Cordage Co., 101 Mass. 153 Ill Roseback v. Aetna Mills, 158 Mass. 379 .63, 70 Rosenberg, Gmaehle v., 40 Misc. 267, 80 Supp. 705, 80 App. Div. 541 8, 11, 98, 104, 105, 167 Rosenberg, Gmaehle v., 83 App. Div. 339, 82 Supp. 336 .. 19 Roesner v. Hermann, 8 Fed. Rep. 782 14 Rossie Iron Wks., Rima v., 120 N. Y. 433 46 Rourke v. White Moss Colliery Co., 2 C. P. D. 205 7 Runt V. 'Herring, 2 Misc. 105 17 Hush V. Mo. Pac. Ry. Co., 36 Kan. 129 119 R., W. & O. R. R. Co., Purdy v., 125 N. Y. 209 ; . 16 R., W. & O. R. R. Co., Hollsapple v., 86 N. Y. 275 16 R., W. & O. R. R. Co., Bossout v., 32 St. Rep. 884 17 Ryan, Healey v., 116 N. Y. 657, 25 Wk. Dig. 23 125 Ryalls V. Mechanics Mills, 150 Mass. 190 5, 9^ 21, 32, 51, 57 Salem, Dalton v., 136 Mass. 278 109 Samuelson, Haske v., 12 Q. B. D. 30 4, 25 Saiinders v. C. of Boston, 167 Mass. 595. 98, 99 Scarff V. Metcalf, 107 N. Y. 211 50 Schaff, Daly v., 28 Hun, 314 128 Scheir v. Quirin, 77 App. Div. 624 130 Sehlisting v. Whitgram, 25 Hun, 626 173 Schlitz V. Pabst Brewing Co., 57 Minn. 303 127 Schott V. Onondaga Bank, 44 App. Div. 503 50 Seully, McPhee v., 163 Mass. 216 5, 61, 68 Seaboard Mfg. Co. v. Woodson, 94 Ala. 143 158 Seairs, Hasty v., 157 Mass. 123 7 Seavey v. Cent. Ing. Co., 11 Mass. 541 39 Shaw, Barv v., 10 Hun, 580 165 Sheldon, Shaw v., 103 N. Y. 667 122 Shaw v. Tobias, 3 N. Y. 188 164 Shaw V. Sheldon, 103 N. Y. 667 122 Shea V. Wellington, 163 Mass> 364 36 Sherlock v. Sherlock, 66 App. Div. 328, 72 Supp. 712 116 Shaw, Kenney v-, 133 Mass. 501 58 Shaffers v. Gen. S. W. Co., 10 Q. B. D. 356. 63, 67, 71 Sharon, Carberry v., 166 Mass. 32 106 Shaw V. City of New York, 82 Supp. 44, 83 App. Div. 212.. 105 Shea V. N. Y., N. H. & H. R. Co., 173 Mass. 177 97 Sheehy V. New York, 160 N. Y. 139. 97, 105 Sheffield v. Harris, 101 Ala. 564 71 xxiv Table op Cases. Paoe. Sheldon v. Carpenter, 4 N. Y. 579 172 Shepard v. B. & M. Ry. Co., 158 Mass. 174 05 Shields, McCabe v., 175 Mass. 438 64, 80 Sieiliiin Asphalt Paving Co., Reilly v., 170 N. Y. 40 171 Siedentopp v. Buse, 21 App. Div. 592. 47 Supp. 800 128 Sieghardt, Golden v., 33 App. Div. 101, 53 Supp. 400 28 Sievers v. Eyre, 122 Fed. 734 23 Simple.x E. Co., Sullivan v., 178 Mass. 35 128 Simson, Denver T. & G. Ry. Co. v., 15 Colo. 55 22 Simpson v. New York Rubber Co., 80 Hun, 415 17, 132 Simone v. Kirk, 57 App. Div. 401, 173 N. Y. 7 50, 58 Sisco V. L. H. & R. Co., 145 N. Y. 296 115 Slade, Fink v., 60 App. Div. 105, 74 Supp. 578 28 Slattery v. Walker & Pratt Co. (1901), 60 N. E. 782, 179 Mass. 307 27, 84 Smith, Bavard v., 17 Wend. 88 164 Smith V. Baker, 1891 A. C. 325 61, 144, 156 Smith, Hannigan v., 28 App. Div. 176, 50 Supp. 845 124, 120 Smith, Galveston, etc., Ry. Co. v., 76 Tex. 611 53 Smith V. E. W. Backus Lumber Co., 64 Minn. 447 127 Smith, Dean v., 160 Mass. 569 68. 128 Smith, Green v., 169 Mass. 485 73, 78 Smith. Hogan v., 125 N. Y. 774 29 Smith Iron Co., Allen v., 160 Mass. 557, 29 So. 659 30, 41 Smith. Knin v., 89 N. Y. 375 123 Smith, King v., 74 App. Div. 1 123 Smith v. Rathbun, 22 Hun, 150 165 Smoot V. Mobile, etc., Ry. Co., 67 Ala. 13 43 Snowberg v. Wellson Paper Co., 43 Minn. 532 125 Southern Ry. Co., Greenlee v., 30 S. E. Rep. N. C. 115 132 Southei-n Ry. Co. v. Moore, 128 Ala. 434, 29 So. 659 30, 41, 89 South Hadley, Nash v., 145 Mass. 105 93 South Boston Gaslight Co., O'Malley v.. 158 Mass. 1C5 Ill Southworth, J. S, & E. Ry. Co. v., 135 El. 250 14 Southworth v. Bennet, 58 N. Y. 659 170 Spalding v. Flint Granite Co., 159 Mass. 587 44 Spangler, R. R. Co. v., 44 Ohio St. Rep. 471 14 Spenser v. Worthington, 44 App. Div. 496, 60 Supp. 873 126 Standard Oil Co.. Lauro v., 74 App. Div. 4. 76 Supp. 800 7 Standard Wheel Co., Hodges v , 152 Ind. 680 5 Stanton, Michael v., 3 Hun, 462 , \ [ 7 State v. Avery, 44 Vermont, 629 [ . , 39 State, Loughlin v., 105 N. Y. 159 '. 50 Stevens, Allen v., 161 N. Y. 122, 143 4 Steam Fitters & Helpers v. Cumming, 170 N. Y. 315 19 Stedman v. Rome (C. of), 88 Hun, 279 " ' lOS Steinway, Benzing v., 101 N. Y. 552 116 154 Steffe v. 0!d Colony Ry. Co., 156 Mass. 262 .'.".'.' 104,' 161 Stevens v. Hannibal & St. Jo. Ry. Co., 86 Missouri, 221 53 Stevens v. Hudson Valley Knitting Co., 69 Hun, 375 125 Stone V. Hyde, 9 Q. B. D. 76 101 Stringham V. Hilton, 111 N. Y. 188, 196 27 St. Louis, etc., Ry. Co. v. Paul, 64 Ark. 83 18 St. Louis, etc., Ey. Co., Williams v., 119 Mo. 316 '. . 158 Table of Cases. xxv Page. Strong, W. & A. Ry. Co. v., 52 Oa. 461 14 Snllivan v. Baxter. 150 Mass. 261 17? Ru'livan v. Thorndike Co., 175 Mass. 41 123 Sullivan v. Simplex Electric Co.. 178 Mass. 35 128 Bnllivan v. Syracuse. 77 Hun, 440 105 Sweeny v. Berlin & Jones Env. Co., 101 N. Y. 520 115, 122, 124 Swift & Co. V. O'Neil, 187 111. 337 125 Sylvia v. Wampanoag Mills, 177 Mass. 194 120 Syracuse v. Sullivan, 77 Hun, 440 105 Syracuse, etc., Ey. Co., Mynard v., 71 N. Y. 180 16 Taafe, Hickey v., 105 N. Y. 26 116, 122 Talcott v. Van Vechten, 25 Hun, 565 165 Tanner v. N. Y., etc., Ry. Co., 180 Mass. 572 61, 128 Tate V. Lathem (1897), 1 Q. B. D. 502, 506 25, 46 Taylor, Litchfield Coal Co. v., 81 111. 590 132 Taylor, Wesley Coal Co. v., 84 111. 126 132 Tenn. C. & I. v. Kyle, 93 Ala. 1 45 Tenn. C. & I., Bridges v., 109 Ala. 287 45 Terry, Brown v., 67 App. Div. 233, 73 Supp. 733 38 Third Ave. Ry. Co., Floettl v., 10 App. Div. 308, 41 Supp. 792 128 Thomas v. Bellamy, 126 Ala. 253 158 Thomas, Pioneer M. & W. Co. v., 133 Ala. 279 30 Thorndike Co., Sullivan v., 175 Mass. 41 123 Thomas v. Quartermaine, 18 Q. B. D. 685 4, 57, 113, 123, 138, 141, 142, 143, 144, 146, l.'iO Thrussel v. Handyside, 20 Q. B. D. 359 138 Thyng v. Fitchburg R. W. Co., 156 Mass. 713 30, 43, 45 Tilly Foster Mining Co., Pantzar v., 99 N. Y. 308 116, 154 Tbdd V. Union Casualty Co., 70 App. Div. 52 161 Tobias, Shaw v., 3 N. Y. 188 164 Tburtellotte, McKee v., 167 Mass. 69 128 Townsend v. Cohn, 7 Civ. Pro. 57 166 Townsend, Butler v., 126 N. Y. 105 7 Trask v. Old Colony By. Co., 156 Mass. 298 40 Trammell, L. & N. Ry. Co. v., 93 Ala. 350 89 T. & P. Ry. Co. v. Archibald, 170 U. S. 065 44 Tremblay v. Mapes Reeves Constr. Co., 169 Mass. 284 128 Trimble v. Whitin Maeh. Wks., 172 Mass. 150, 51 N. E. 463.... 30, 63 Trinity Church, Bogardus v., Paige, 178 1 84 Troy, Dawson v., 49 Hun, 322 104 Troy, St. & I. Works, Kaare v., 139 N. Y. 369 120-122 Tioy V. Masters, 50 Hun, 485 105 Tucker, Riley v., 179 Mass. 190 30 Tucker, Weed v., 19 N. Y. 433 4 Tull V. Lake Erie & W. Ry. Co., 175 U. S. 348 18 Tully V. N. Y. & Texas S. S. Co., 10 App. Div. 463 50 Tyberg v. Nor. Pac. Ry. Co., 39 Minn. 15 125 Union Bag & Paper Co., Bellegarde v., 83 N. Y. Supp. 925 57 Union Casualty Co., Todd v., 70 App. Div. 52 161 Van Vechtin, Talcott v., 25 Hun, 565 105 Viirrelman, Berger v., 127 N. Y. 281 4 rjcvi Table of Cases. Page. Veeder v. Baker, 83 N. Y. 156 11 Velie V. Newark Ins. Co., 12 Abb. N. C. 309 165, 170 Veginan v. Morse, 160 Mass. 142 13, 103, 104, 146 Vitto V. Keogan, 15 App. Div. 329 60 Walkelne, Canney v., 58 L. R. A. 33, and note, 5 C. C. A. 53, 113 Fed. 66 68 Walker & Pratt Co., Slattery v. (1901), 60 N. E. 782, 179 Mass. 307 2r Walpole Emery Co., Goodnow v., 146 Mass. 261 Ill Walsh V. Whiteley, 21 Q. B. D. 371 4 Walters v. Continental Ins. Co., 5 Hun, 343 170 Walters v. Geo. A. Fuller Co., 74 App. Div. 388, 77 Supp. 681. .. . 50 Walters, Highland Ave. & B. R. Co. v., 91 Ala. 442 119 Waltham, Connolly v., 156 Mass. 368 158 Walthams v. Hope, 77 N. Y. 420 172 Walworth Mfg. Co., Morris v., 181 Mass. 326 37 Wampanoag Mills, Douin v., 172 Mass. 221 73 Wampanoag Mills, Silvia v., 177 Mass. 149 120 Ward V. New Eng. Fibre Co., 154 Mass. 419 7 Washburn & Moen Mfg. Co., Carrigan v.. 170 Mass. 79 124 Washburn, McCarthy v., 42 App. Div. 252, 58 Supp. 1125 125 Washburn, Burns v., 160 Mass. 457 29, 63 Washington Mills Co.. Woodridge v.. 160 Mass. 234 Ill Washburn & Moen Mfg. Co., Donohue v., 169 Mass. 574 27, 111 Washburn & Moen Mfg. Co., Gustafaon v., 153 Mass. 468 46 Wason Mfg. Co. v. Wheeler, 135 Mass. 294 77 Watson, Ind. & St. L. R. R. Co. v., 114 Ind. 20 127 Watson, L. & N. Ry. Co. v., 90 Ala. 68 89 Watts V. Boston Tow Boat Co., 161 Mass. 378 158 Watts V. Boston Tow Boat Co., 161 Mass. 378 158 Watts, Willetta v., 2 Q. B. D. 92 36, 37, 38 Waydell, Gabrielson v., 135 N. Y. 1 60, 90 Waygood, Wild v., 61 L. J. Q. B. 91, 1 Q. B. D. 782 7 Webb Granite Co., Beauregard v., 160 Mass. 201 . . 106, 109, 169, 170, 171 Webber, Kimmer v., 151 N. Y. 417 28 Webber v. Piper, 109 N. Y. 469 29 Weblin v. Ballard, 17 Q. B. D. 122 4, 57, 112, 139 Weed v. Tucker, 19 N. Y. 433 4 Welch V. Grace, 167 Mass. 590 36 Wellington, Shea v.. 163 Mass. 364 36 Wellson Paper Co., Snowberg v., 43 Minn. 532 125 Werner v. Rochester, 77 Hun, 33 105, 108 Wesley Coal Co. v. Taylor, 84 HI. 126 132 Westbury ( Inhab. of ) , McCoy v., 172 Mass. 504 76 Westcott v. N. Y. & N. E. Ry. Co., 1.53 Mass. 460 124 West End St. Ry. Co., Millard v., 173 Mass. 512 82 West End St. Ry. Co., O'Brien v., 173 Mass. 105 82 West End St. Ry. Co.. Whelton v., 172 Mass. 556 88, 119 Western Ry. Co., Galloway v., 57 Ga. 512 14 Western Ry. Co. v. Bishop, 50 Ga. 465 14, rg Western Ry. Co., Keegan v., 8 N. Y. 175 45 Western Ry. Co., Patton v., 96 N. C. 455 53 Weymouth, Gardner v., 155 Mass. 595 102 Table of Oases. xxvii Page. Wheeler, Berry v., 95 Mich. 250 119 Wheeler v. Wason Mfg. Co., 135 Mass. 294 77 Wheelock, Langley v., 181 Mass. 471 119 Whitaker v. Bent, 167 Mass. 588 36 White Moss Colliery Co., Eourke v., 2 C. P. D. 205 7 White V. Cotzenhausen, 129 U. S. 329 4 White V. Mayor, etc., 15 App. Div. 442 104 White V. Nanajitum Worsted Co., 144 Mass. 276 5 White V. Witteman Lith. Co., 131 N. Y. 631 131 Whiteley, Walsh v., 21 Q. B. D. 371, 374 4 Whitin Maeh. Wks., Trimble v., 172 Mass. 150, 51 N. E. 463 30, 63 Whitman v. Groveland, 131 Mass. 553 106, 110 Whitney Co. ( Geo. C. ) , Joseph v., 177 Mass. 176 72, 73 Whelton v. West End St. Ry. Co., 172 Mass. 556 88, 119 Whittier Mach. Co., May v., 154 Mass. 29 34, 37, 168 Wild V. Waygood, 61 L. J. Q. B. 91, 1 Q. B. D. 782 7 Willcutt, Carroll v., 163 Mass. 221 29, 36, 37, 66 Willetts V. Watts, 2 Q. B. D. 92 36, 37, 38 Willey V. Boston E. L. Co., 168 Mass. 40, 42 25 Williams, Mo. Pae. Ry. Co. v., 75 Texas, 4 53 Williams v. Port Chester, 76 Supp. 631, 72 App. Div. 505 100 Williams v. Birmingham B. & M. Co., 2 Q. B. D. 338 138 Williams v. St. Louis Ry. Co., 119 Mo. 316 158 Williams v. D., L. & W. Ry. Co., 116 N. Y. 626 122, 131 Willis V. Cole, 9 Colo. 159 22 Willis V. Grand Trunk Ry. Co., 60 Maine, 488 14 Wilson, Fulton Bag, etc., Co. v., 89 Ga. 318 14 Wilson V. Merry, L. E. 1 Be. App. 326 20 Wilson V. L. & N. Ry. Co., 85 Ala. 269, 272 21 Witgram, Sehlisting v., 25 Hun, 626 173 Witteman, White Lith. Co. v., 131 N. Y. 631 131 Wood V. Dorrel, T. L. R., vol. 1, 550 38 Woodbury v. Post, 158 Mass. 140 166 Woodley v. Metropolitan Dstr. Ry. Co., 2 Exeh. Div. 384 144 Woodridge v. Washington Mills Co., 160 Mass. 234 Ill Woodson, Seaboard Mfg. Co. v., 94 Ala. 143 138 Woodward Iron Co. v. Cook, 124 Ala. 349 5' Woodward Iron Co. v. Herndon, 114 Ala. 191 166 Woolfolk, Cappaso v., 163 N. Y. 472 50 Woonsocket Rubber Co., B.ibjian v.. 164 Mass. 214, 219 35 Worcester, Joyce v., 140 Mass. 245 32 Worcester (C. of), Mitchell v., 129 Mass. 525 98, 99 Worthington, Spencer v., 44 App. Div. 496, 60 Supp. 873 126 Wright V. N. Y. C. & H. R. R. Co., 25 N. Y. 566 122 Wyllie V. Palmer, 137 N. Y. 257 7 Wyman v. Clark, 180 Mass. 173 45 W. & A. Ry. Co. v. Strong, 52 Ga. 461 14 W. & A. Ry. Co. V. Bishop, 50 Ga. 465 14 W., etc., Ry. Co., Hendricks v., 52 Ga. 467 14 W. J. S. & I. Co., Dale v., 155 Mass. 1 5 W. U. Tel. Co., Higgins v., 8 Misc. 435 7 Yarmouth v. France, 19 Q. B. D. 647 4, 113, 138, 142, 144, 150 • York, L. & N. Ry. Co. v., 128 Ala. 305 89 Young V. B. & M. R. Co., 168 Mass. 219 30, 45 THE NEWYORK EMPLOYERS' LIABILITY ACT CHAPTER I. Liability Legislation in General — Its Development and Character — Construction of Liability Acts — Constitu- tionality. Sec. I. History. Within the past twenty years in this country there has been a general tendency in legislation towards the enactment of laws regulating and increasing the lia- bility of employers to employees. There are statutes now in force in twenty-eight States on the subject, and, while the phraseology and forms of these enactments are diverse, they are all drawn to accomplish the same general purpose, namely, to change the common law rules applicable to actions between employers and em- ployees and to improve the position of the injured plain- tiff who sues his employer for negligenca The reason for this general tendency towards the en- largement of the liability of the employer is not difficult to find. The rules of the common law, defining the duties of employers to employees, were formulated in the days of the stage-coach and the handloom, and such doubts as have grown up as to the theoretical justice of 2 The New York Employees^ Liability Act. these rules have been reinforced by considerations of public policy. The growth of the factory system, the development of railways, and the constant increase in the possibilities of physical injuries from the ordi- nary occupations in which workmen are engaged to-day have made imperative an increase of legal responsibility on the part of employers, so that, by reason of such in- creased liability, they shall use that greater care for the safety of their workmen which modern business condi- tions demand. In New York alone the statistics col- lected by the State Bureau of Labor Statistics (report of Bureau of Labor Statistics for 1899) show that nearly 700 men are killed annually in the industrial establishments of the State, not including the persons injured in railway servica The number of accidents, not occasioning death, are annually about 40,000. In railway service between 200 and 300 men are annually killed in the State. Increased legal responsibility tends to produce greater care on the part of employers in the performance of duties which humanity enjoins. The main purpose of liability acts, therefore, from the standpoint of the legislator, is the diminution of the number of casualties, and that these acts have to a large extent accomplished that humane purpose there can be little doubt Space will not permit an extended analysis of the provisions of the statutes referred to above. They are collected below in a foot note.* 1. Alabama (Code of 1886, pt. (Digest of 1894, ch. 130, sees. ni, tit. 1, sees. 2590-2592, Act of 6248-6250). California (Civil .February 12, 1885). Arkansas Code of 1885, p. 345, sees. 1969- Construction of Liability Acts. In four States employers' liability acts have been enacted, modelled upon, and in may essential features following verbatim, the English Employers' Liability Act of 1880 (43 and 44 Vict, ch. 42). These States are Alabama,^ Massachusetts,* Colorado,* and New York." In Indiana* a statute similar in many respects to the English statute is in effect, but made applicable solely to railway and other corporations. The English act is no longer in force, having been superseded by the 1971). Colorado (art. 15, sec. 15 of the Constitution; also Act of 1893, p. 77, Employers' Lia- bility Act, Act of 1900, ch. ). Florida (Revised Statutes of 1892, Appendix, p. 1008, see. 3). Georgia (Act of 1855, Code of 1882, sees. 2083 and 3036). Indiana (Annotated Statutes of 1894, ch. 81, sees. 7083-7087). Iowa ( McClain's Annotated Statutes of 1880, tit. 10, ch. 5, sec. 1307; also, Act of 1898, ch. 49). Kansas (General Statutes of 1889, ch. 23, par. 1251). Massachusetts (L. 1887, ch. 270, as amended by eh. 260, Acts of 1892, and by eh. 359, Acts of 1893; oh. 499, Acts of 1894; also, ch. 491, L. 1897). Minnesota (General Statutes of 1894, ch. 34, see. 2701; also. Acts of 1895, ch. 324). Mississippi (Consti- tution, art. 7, sec. 193; also. Re- vised Code of 1880, sec. 1054; also, ch. 66 of the L. 1898). Missouri (Acts of 1897, ch. 96). Montana (Code and Statutes, Sanders' Ed. of 1895, div. I, see. 105). New Mexico (Acts of 1893, ch. 28). North Carolina (Act of February 23, 1897). North Dakota (L. 1899, ch. 129; also. Revised Code of 1895, Civil Code, ch. 50, sees. 4095 to 4097). Ohio (Acts of 1890, p. 149). Rhode Island (Statutes of 1882, ch. 204, sec. 15). South Caro- lina (art. 9, sec. 15, of Constitu- tion). Texas (Acts of 1897, Special Session, ch. 6). Wiscon- sin (Acts of 1893, ch. 220). Wyoming (Acts of December 7, 1889; also, art. 10 of Constitu- tion ) . 2. The Act of February 12, 1885; Civil Code 1S96, ch. 43, sees. 1749-1751. 3. L. 1887, ch. 270, as amended by ch. 260, L. 1892; ch. 359 of Acts of 1893; ch. 499 of Acts of 1894, and ch. 491 of Acts of 1897. 4. Acts of 1893, eh. 77. 5. Ch. 600 of L. 1902. 6. Acts of 1893, ch. 130, Anno- tated Statutes of 1894, ch. 81, sees. 7083-7087. 4 The New York Employees' Liability Act. Bo-called Workingmen's Compensation Act of 1897, a statute more in the nature of insurance or an industrial pension, and is no longer in force. The English cases and the decisions of the courts in these four States will be useful as precedents in the construction of similar provisions contained in the New York law. Sec. 2. Construction. The general rule of construction is, of course, that statutes in derogation of the common law shall be Con- strued strictly. While the Employers' Liability Act makes changes in the common law, it is, however, a reme- dial statute in the fullest sense of the term, and, as such, entitled to liberal construction that the purposes of its enactment may be accomplished.'^ The English courts, in the construction which they have placed upon the Employers' Liability Act of 1880, uniformly give the meaning of the phrases used a liberal interpretation, and hold that the act, so far as rea- son would justify, is to be considered in favor of the employee.* 7. Budler v. Oolden, 36 N. Y. D. 208; Haake «. Samuelson, 12 446; Weed v. Tucker, 19 N. Y. Q. B. D. 30; WaUh v. WUteley, 433; Berger v. Varrelman, 127 21 Q. B. D. 371-374; Clarkson v. N. Y. 281-287; White v. Goteen- Musgrave, 9 Q. B. D. 386; Morri- hausen, 129 U. S. 329; Allen v. son v. Baird, 10 Sc. Sess. Cas., Stevens, 161 N. Y. 122-143. 4th series, 271; WelUn v. BaU 8. Griffiths v. The Earl of Dud- lard, 17 Q. B. D. 125 ; Thomas v. ley, 9 Q. B. D. 357; Oshorne v. Quartermaine, 18 Q. B. D. 685, Jackson, 11 Q. B. D. 619; Gihhs v. at p. 692; Yarmouth v. Prance, Great Western Ry. Co., 12 Q. B. 19 Q. B. D. 647. Construction of Liability Acts. 5 The same policy in the construction of the Massachu- setts Employers' Liability Act has been followed by the courts of that State* In Alabama the courts have said that in the con- struction of the act the courts should consider its ob- ject, have regard for the intention of the Legislature and take a broad view of its provisions commensurate with its proposed purposes.^" In Indiana a policy similar to that of Alabama is pursued. In a recent case, Hunt, Receiver, v. Connor, Adm., 26 Ind. App. Ct. 41 (59 N. E. 50), the court con- strues the Indiana Employers' Liability Act and de- cides that, " being in derogation of the common law, it is to be strictly construed, but, being a remedial act, it must receive such a liberal construction with reference to the objects it was intended to accomplish, and for the purpose of advancing the remedy as well as carrying into effect its true beneficial purpose" (See, also, Hodges v. Standard Wheel Co., 152 Ind. 680.) Sec. 3. The relation of employer and employee must exist. It is to be observed that the New York statute is one in favor of the employee, as appears by its title, " An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees." The first section of the bill further pro- 9. See Ryalls v. Mechanics ployers' Liability Act of 1880, Mills, 150 Mass. 190; McPhee v. etc., by E. M. Milton Senhouse, Scully, 163 Mass. 216; White v. p. 7. Nonantum Worsted Co., 144 10. See Motile vant, whose act is the cause of the injury, was performing a duty of the master which the master is not authorized to delegate, but also whether he was exercising super- intendence when he did the negligent act, and whether his sole or principal duty at that time was one of super- intendence. Sec. 22. The effect of the " superintendence clause." There are many cases construing the meaning of this section, and probably the greater portion of the cases brought under the Liability Acts have been brought un- der this subdivision. It will be observed from a con- sideration of these cases, which will be given more in detail later in the chapter, that to create a liability un- der this subdivision, three elements must concur: l8t> a negligent act or omission; 2d, which is performed or omitted by a person whose sole or principal duty is that of superintendence, and 3d, the negligent act itself must be an act of superintendence. When these three ele- ments concur, the statute gives the injured employee "the same right of compensation and remedy against the employer as if the employee had not been an em- poyee of, nor in the service of the employer, nor engaged in his work." After some uncertainty the construction Effect of Superintendence Clause. 57 flnallyadopted for these words last quoted (which occur in the English, Massachusetts and New York laws), is that the defense of common employment is removed when the action is brought for an injury occasioned by any negligent act or omission specified in this section of the law. The employer has left to him then as against his employee only the same defenses which he would have against any other person who comes into his premises upon business {Thomas v. Quartermaine, 18 Q. B. D. 685, 700), and who is neither a trespasser nor a bare licensee {Mobile, etc., Ry. Co. v. Halborn, 84 Ala. 133, 136; Coffee v. N. Y., etc., Ry. Co., 155 Mass. 21, 22. ) A similar ruling was made at trial term in Wash- ington county {Bellegarde v. Union Bag & Paper Co., 83 N. Y. Supp. 925; — App. Div. — ), in which the trial justice construed this portion of the New York Liability Act and held that it was intended to prevent the negli- gence of the superintendent from being imputed to the employee, and that a plaintiff, in an action for injuries against his employer, could not be treated as a trespasser on the employer's premises, but rather as being there by the employer's invitation. The early English cases on the construction of the English Act of 1880 {Weblin v. Ballard, 17 Q. B. D. 122) hold that these words quoted above had the further effect of taking away the defense that the employee had assumed the risk of injury from any of the causes specified in section 1 of the act, and this construction was apparently considered the proper one in Massachusetts in Ryalls v. Mechanics Mills, 150 Mass. 190. On this point these cases have not been followed, however, and the rule is well established, both in Eng- land and Massachusetts, that the section quoted above 58 The New Yoek Employees^ Liability Act. has had no effect in modifying or changing the doctrine of assumed risk. (See sec. 55.) Sec. 23. The employee does not assume the risk of superin- tendent's negligence. Under the common law one of the ordinary risks of an employment is the possibility of injury by a fellow servant. Under the general common law rule, in force in New York, the fact that a negligent person whose act causes the injury is in control of the person who is in- jured thereby, does not vary the master's liability un- less the injury was occasioned while the negligent ser- vant was performing some non-deligible duty of the employer. {Simone v. Kirk, 173 N. Y. 7.) The negli- gence of a fellow servant gives the injured servant no cause of action at common law against the employer, and one of the reasons for this established and ele^ mentary rule is that the employee injured, by his con- tract of employment, is held to have assumed the risk of injury by the negligence of a fellow employee. If the employee, under the Liability Act, by entering upon or continuing in the business of the employer as- sumes the risk of injury by the negligent act or omission of the person " whose sole or principal duty is that of superintendence," the provisions of subdivision 2 of article 1 are obviously without force. It has been held, however, that this defense has been taken away by the statute and that the employee does not assume the risk of injury either from the incompetence or the negligence of a person whose principal duty is that of superin- tendence. In Malcolm v. Fuller, 152 Mass. 160, this question was first raised in Massachusetts. In this case Superintendent's Negligence not Assumed. 59 a quarryman, in general charge of a quarry, finding that the wadding still remained in a hole which he had as- sisted in drilling and loading with powder and had attempted to discharge, negligently assumed that the charge had exploded and had passed off through another hole by a crevice in the rock, and, deciding to drill out the wadding, directed a fellow servant to hold the drill. The servant did so, while the quarryman did the strik- ing, whereupon the charge exploded, injuring the work- man. It was contended by the defendant that the risk of such an explosion was one of the assumed risks of the employment, and that the negligence of the superin- tendent was also one of the assumed risks. Defendant relied upon Kenney v. Shaw, 133 Mass. 501, which, in its facts, closely resembled the case at bar, and which held that the plaintiff assumed the risk of his own negli- gence, of the negligence of the superintendent and of the explosion of gunpowder without negligence. The court, after citing this case, says : " The object of the statute of 1887, chapter 270, section 1, clause 2, is to make the defendant liable for and to prevent the plain- tiff from assuming one of those risks, and the one which the jury found caused his injury. This plaintiff clearly did not assume the risk of all danger from explosions of gunpowder, however caused, in the course of his em- ployment, and the instruction given at the request of the defendant that ' if the plaintiff, when he undertook to hold the drill in the hole, knew that it was dangerous and continued to hold it, although he did so unwillingly and under orders of another, he cannot recover, but must be taken to have assumed the risk which he has know- ingly undertaken,' was certainly suflSciently favorable 60 The New Yoek Employees^ Liability Act. to the defendant The risk that the defendant or his superintendent would negligently attempt to remove a charge of gunpowder by drilling into a hole that had been charged before ascertaining that the charge had exploded, was not one of the risks of his employment which the plaintiff assumes." ^ In Davis v. N. Y., N. H. & Hartford B. R. Co., 159 Mass. 532, on this point the court says : " It is sug- gested that the plaintiff took the risks of the danger. In general, it is not negligent not to anticipate wrongful negligence on the part of defendant {Hayes v. Hyde Parle, 153 Mass. 514), and assuming that there is a difference in the proposition, a workman does not take the risk that a person entrusted by his employer with, 5. With this case should be contrasted the case of Oullen v. Norton, 126 N. Y. 1, which sets forth the New York common law rule on a state of facts very nearly the same as in the case above cited. In this action, plaintiff's intestate was killed while employed as a laborer by defendant in his quarry and en- gaged in drilling rock for blast- ing under the direction of defend- ant's foreman. After a blast it was found that the charge in one of the holes had not exploded. The foreman examined it and found the fuse unconsumed but failed to remove it. He set other workmen to work, drilling, within two feet, and directed plaintiff's intestate to drill at a place some thirty feet distant. The fuse caught fire and the charge in the hole exploded. killing plaintiff's intestate. The Court of Appeals held that the negligence of the foreman was that of a fellow servant, for which the master was not liable, and that the plaintiff's intestate had assumed the risk ; " the mas- ter furnished the mine as a place for labor, and it was solely on account of the manner in which the foreman, a fellow servant, performed the work or directed it, that the accident happened, and happened in the course of the performance of the very kind and character of work which plain- tiff's intestate took the risk of by accepting the employment." The court held that the injury re- sulted from a detail of the work- ing or management of the busi- ness, the risks attending which had been assumed by the party taking the employment. Stjpeeintendencb and Obvious Eisks. 61 and exercising superintendence, will be negligent in the exercise of that duty. If he were held to be so, the statute would be made of no avail." ( See^ also, Smith V. Baker ]1891[, A. 0. 325; McPhee v. Scully, 163 Mass. 216.) This doctrine, that a servant does not assume the risk of injury by the negligence of his superintendent, does not mean that a servant can blindly rely on the direction of the superintendent in disregard of an ob- vious risk of danger concerning which he needs no warning. If injury follows under such circumstances, plaintiff cannot recover because the risk of injury has been assumed. (See sec. 48 and following.) In Tanner v. N. Y., etc., B. R. Co., 180 Mass. 572, the plain- tiff was employed in transferring wires from an old set of poles to a new one. He climbed one of the old poles for the purpose of throwing down the wires from the cross arms, and these wires fell across a wire guy connecting the pole with the fence. There was an over- seer standing near the foot of the pole directing the work, and plaintiff told him that the wires were crossed on the guy and asked him what to do. The overseer told him to cut the guy, which the plaintiff did, and the pole fell causing the injuries for which the action was brought. The court held that plaintiff could not recover, on the ground that the risk of the falling of the decayed pole was an assumed risk which plaintiff accepted in his em- ployment of dismantling the old pole. The denial of recovery, however, was not based on the ground that plaintiff had assumed the risk of the overseer's careless- 62 The New York Employers' Liability Act. ness, the court apparently assuming both that this over- seer was a superintendent, and that the direction to cut the guy was itself an act of superintendence. Sec. 24. Who are superintendents? The test for the employer's liability, under this sec- tion, depends on adequate proof that the negligent per- son was, at the time of the injury, entrusted with and exercising superintendence, and that his sole or princi- pal duty was that of superintendence. In determining the question whether a person is acting as superintend- ent, within the meaning of this section, various elements have been made important as evidence. The fact that the person charged with being superintendent was ac- customed to give directions to other employees ; that he had power to employ and discharge; that he gave di- rections as to the commencement or termination of the work; that he received greater pay than the other em- ployees to whom he gave directions; that his work was to a less extent manual labor, or the portion of his duty which consisted of manual labor was less than that of the other employees; that he customarily exercised au- thority, and many other facts and circumstances from which it might be assumed by the jury that such a per- son was acting as superintendent, are admissible. Sec. 25. The question of superintendence ordinarily one for the jury. The inference to be drawn from the evidence touch- ing the question whether the person whose negligence caused the injury was or was not a superintendent, is ordinarily one for the jury, and it is only in those rare Evidence op Superintendence. 63 cases where the facts are undisputed that such question becomes one of law for the court.* Sec. 26. Evidence of superintendence. The following are some of the cases which have passed upon the question as to who are superintendents within the meaning of the act. In Mahoney v. N. Y. & N. E. R. R. Co., 160 Mass. 573, the person upon whose super- intendence the defendant's liability depended was a section foreman in the employ of a railroad corporation, having charge and superintendence over a gang of five men, his, duty being to take receipts, check freight into cars, see that it was loaded into the right cars, and un- der his direction the five men were working all the time in handling freight. This was held sufficient to au- thorize a finding that his principal duty was that of superintendence. In Riou v. Rockport Granite Co., 171 Mass. 162, defendant's foreman was called as a witness by plaintiff and testified, in answer to questions put to him, that it took most of his time telling the men what to do and giving them work, and in reply to the ques- tion : " During the whole day did you keep run of the men and keep them at work and tell them what to do and what not to do? " he answered, " Yes." This was held sufficient evidence that his principal duty was superintendence. 6. Eaves v. Atlantic Novelty R. Co., 170 Mass. 298; O'Brien v. Mfg. Co., 176 Mass. 369; Knight Bideout, 161 Mass. 170; Burns V. Overman Wheel Co., 174 Mass. o. Washlurn, 160 Mass. 457; 455; Brady v. Norcross, 174 Boseiack v. Aetna Mills, 158 Mass. 442; Trimble v. Whitin Mass. 379; Gashman v. Chase, Machine Co., 172 Mass. 150; 156 Mass. 342; Shaffers v. Oen, Cunningham v. Lynn & Boston 8. 8. N. Co., 10 Q. B. D. 356. 64 The New York Employers^ Liability Act. In Prindible v. Conn. Riv. Mfg. Co., 160 Mass. 131, an action was brought for injuries occasioned by the falling of a staging, which was erected in the yard of defendant's saw mill by the side of wood pile, for the purpose of enabling the workmen to pile the wood higher. There was evidence that the staging was built by one Campbell, who was in the defendant's employ, assisted by a number of the " piling gang;" that no one gave any orders to this gang besides Campbell, who was its foreman ; that he sometimes worked with his hands, but worked when he pleased and did whatever work he pleased; that when he was working he was overseeing the men and giving them directions ; that he placed men at work whenever he saw fit and hired workmen at different times on their application to him for work. Two of defendant's witnesses also testified that Camp- bell had general authority over the gang of workmen. The court held that a jury would be warranted in find- ing that Campbell's principal duty was superintendence. In McCabe v. Shields, 175 Mass. 438, the court permitted proof to be introduced of acts of an alleged superin- tendent in putting people out of the shop and his language at the time he did it, as bearing upon his con- duct in the shop in matters of control. Similar state- ments of an alleged superintendent have been permitted as proof of his superintendence in Osborne v. Jackson, 11 Q. B. D. 619. In Gardner v. N. E. Tele. Co., 170 Mass. 156, the foreman, known as such, and employed by the defendant, sometimes did work of the same char- acter as the other employees. They received their orders from him alone, and he employed and discharged Sufficient Evidence of Superintendence. 65 men for the defendant. In field work and elsewhere he had entire charge of the men, and his wages were $20 per month more than those of the plaintiff. It was held that the jury could determine from these facts that he was acting as superintendent. In O'Brien v. Look, 111 Mass. 36, there was evidence that the foreman em- ployed and discharged men ; that he had seventeen men, to whom he gave orders as to the time in which to begin and quit work and as to the manner of its performance ; and also that he received higher wages than the others because he was boss or foreman. This was sufficient evidence of superintendence. In Dams v. N. Y., etc., R. R. Co., 159 Mass. 532, the foreman of a gang of laborers, engaged in track repairing, was held to be a person entrusted with superintendence, distinguishing Shepard v. B. & M. R. Co., 158 Mass. 174, which held that a section foreman was not a superintendent for whose negligence the railroad should answer when the injuries were occasioned by the negligent movement of a hand car on which a gang of workmen was riding. In Malcolm v. Fuller, 152 Mass. 160, the action was for injuries received by the employee of a quarryman, claimed to have been received from the negligence of a superintendent named Stewart. Plaintiff's evidence showed that Stewart, while he assisted in the various manual labors of blasting, such as striking the drill and sinking and loading the hole in the rock, getting the powder out of the powder house and discharging the blasts, was the only one at the quarry in general charge of the work, being most of his time occupied in super- intending men ; that he put them to work and told them 5 66 The New York Employers^ Liability Act. to leave off when the time came, and they got their orders from him alone ; that he looked about to see who was working, and, if there was a man lacking anywhere would supply his place; that in particular he saw to it that the cutters of paving stones had plenty of stock with which to work. This, with other evidence, was held sufficient evidence of superintendence. In Rey- nolds V. Barnard, 168 Mass. 226 (1897), it was shown that defendant's son was foreman of the job on which the accident occurred, and that he had charge of it. The majority of the court held that this was enough to justify plaintiff in his contention that it was a question for the jury as to whether the principal duty of this foreman was not superintendence, notwithstanding the fact that this foreman did manual labor and was en- gaged in laying slate on another section of the roof at the time of the accident. In Geloneck v. Dean Steam Pump Co., 165 Mass. 202, the negligence complained of was of one Eyan. Plain- tiff was injured while working in defendant's yard, en- gaged in loading and unloading pumps for transporta- tion. The testimony showed that Ryan had charge of the yard, loading and unloading, and in responses to the question as to whether or not Ryan used to work with his hands, plaintiff answered, " Just telling the people to do their work; just taking charge of them." Ryan himself said that he was engaged principally in loading and unloading and had been yard foreman for eight or ten years, and that he worked principally with his hands. The question was one for the jury. In Carroll v. Willcutt, 163 Mass. 221, the negligence complained of was of one George Grant. Plaintiff SUPEEINTENDBNCB OF MEN, NOT THINGS. 67 testified, " George Grant had charge of the work there; he gave his orders to every man in the place; I got my orders from him; I didn't notice any difference when Willcutt (the defendant) was there; he (Grant) acted all the time as thought he were boss there, foreman ; he took plans and read them and laid out the work for them." The question was one for the jury. Sec. 27. Superintendence must be of men and not of thingSj The word superintendence itself, in its ordinary meaning, of course implies direction, and directions can only be given to persons. It has accordingly been held that persons whose sole or principal duty is the control or operation of machinery, or who have the superin- tendence of machinery rather than of the individuals who operate it, are not within the meaning of the act. The only superintendence covered by the act is the superintendence exercised over employees.'^ Sec. 28. Manual labor to disprove superintendence. Ordinarily the fact that the alleged superintendent is engaged in manual labor and the portion of time ordinarily spent by him in manual labor, is important in determining the question whether he was acting as superintendent as his sole or principal duty. The fact of manual labor, however, is not conclusive of the ques- tion as to whether his principal duty is that of super- intendence. (Crowley v. Cutting, 165 Mass. 436; Mal- 7. See Dantzler v. DeBardele- Kansas City M. & B. Ry. Go. v. len a. & I. Co,, 101 Ala. 309; Burton, 97 Ala. 240; Culver v Cashma/n v. Chase, 156 Mass. 342; Ala. M. By. Co., 108 Ala. 330i Bhaffers v. General Steam Navi- Birmmgham Ry. & E. Co. v. gation Co., 10 Q. B. D. 356; Baylor, 101 Ala. 488. 68 The New Yoek Employees' Liabiutt Act. colm V. Fuller, 152 Mass. 160 ; Reynolds v. Barnard, 168 Mass. 226. ) In GelonecJc v. Dean Steam Pump Go., 165 Mass. 202 (see sec. 26), it was shown that the foreman in defendant's yard had time to work with his hands and did so work. The court held, notwithstanding this fact, that the question of superintendence was one for the jury. (See, also, Gardner v. N. E. Tel. Go., 170 Mass. 156 ; Ganney v. Walkeine, 51 0. 0. A. 53, 113 Fed. 66; L. E. A., vol. 58, p. 33, and note.) In Knight v. Overman Wheel Co., 174 Mass. 455, there was a conflict of evidence, one side offering proof that the alleged superintendent's work was manual labor, and the other side showed that he worked very little and was princi- pally employed in directing the men, and the question was one for the jury. (See, also, McPhee v. Scully, 163 Mass. 216; Mahoney v. N. Y. d N. E. B. R. Go., 160 Mass. 573; Dean v. Smith, 165 Mass. 569.) Sec. 29. Insufficient proof of superintendence. In Adaslcen v. Gilbert, 165 Mass. 443, it was held that a workman who was employed on a job as a common painter, receiving the same pay as his two fellow ser- vants and doing the same work, is not one entrusted with and exercising superintendence, notwithstanding the fact that the injury complained of results from the negligent direction given by him. In O'Brien v. Rideout, 161 Mass. 170, the proof showed that the fore- man whose negligence was claimed to have caused the injury was kept at work mainly in getting out lumber, piling it up, arranging it and operating saws in de- fendant's mill. It was held there was insufficient evi- dence to justify a finding that he was principally en- Insufficient Evidence of Supekintendence. 69 gaged in superintendence though the injury resulted from an act of superintendence. In O'Neil v. O'Leary, 164 Mass. 387, the evidence showed that a person em- ployed as superintendent of the blasting of a ledge of rock, worked with his own hands in attending to the fire under the steam boilers and in sharpening tools, in charging the drill holes and cleaning them out, and other acts of manual labor which occupied most of his time. The court says : " The words ' sole or principal duty of superintendence ' must have a reasonable inter- pretation given to them, and a majority of the court is of the opinion that it could not be said of a person who works at manual labor to the extent shown in this case that his principal duty is that of superintendence." In Cashman v. Chase, 156 Mass. 342, the person whose superintendence was in question was an engineer in charge of a steam engine used for raising and lowering a fall on a lighter between a vessel and the wharf. The engineer employed the men in the first instance and set them to work. He went into the hold of the vessel on several occasions and showed them how to adjust the rope around bundles of lathes which were being taken out of the hold ; he discharged and employed men. The engineer did no manual labor except the running of the engine. The court says : " Upon the facts it might be competent to find that the engineer was to some extent a superintendent. The employment and discharge of the workmen, setting them at work and showing them how to do the work are acts consistent with superin- tendence, but these acts, in connection with the evidence that his station was on the lighter and his work there the continuous labor of running the engine in accord- 70 The New Yoek Employers^ Liability Act. ance with orders transmitted him from others, show that neither his sole or principal duty was that of superintendence." In Dowd v. B. d A. B. R. Co., 162 Mass. 185, the person whose negligence occasioned the injury, and who was claimed to have been acting as superintendent at the time, worked with his hands and drew the same wages as the plaintiff and other work- men. He gave directions in the absence of the general superintendent A verdict was directed for the defend- ant as the evidence did not justify the finding that his sole or principal duty was that of superintendence. In Rosehack v. Aetna Mills, 158 Mass. 379, it was held that an ordinary weaver, whose usual work is that of an operator of a loom, is not a person entrusted with and exercising superintendence merely because it was also his duty when his loom got out of order to notify the loom fixer to repair it. Sec. 30. The negligent act must be an act of superin- tendence. In Cashman v. Chase, 156 Mass. 342, the following rule is laid down for determination whether or not the act is one of superintendence : " Unless the act itself is one of direction or other oversight tending to control others and to vary their situations or actions because of his direction, it cannot fairly be said to be one in the doing of which the person entrusted with superin- tendence is in the exercise of superintendence. For the negligence of such a person in doing the mere act of an ordinary workman in which there is no exercise of superintendence the employer is not made responsible by the statute" The Negligence must be in Supeeintbndence. 71 The statute uses the words " by reason of the negli- gence of any person in the service of the employer en- trusted with and exercising superintendence. It is well settled on authority that no recovery can be had for negligent acts of persons, whose general duties are those of superintendence, unless the act itself be an act of superintendence and a negligent act as well. " To hold a master or employer liable under this pro- vision, the negligence must be that of some agent or em- ployee who is in the exercise of superintendence, and to whose negligence as such superintendent the disaster is traced." ( City Council of Sheffield v. Harris, 101 Ala. 564, 569 and 570. ) In Shaffers v. Gen. S. W. Co., 10 Q. B. D. 356, the action was brought to recover for the al- leged negligence of a person having superintendence en- trusted whilst in the exercise of superintendence. Tlie plaintiff was stowing sacks of com in the hold of a ship, the sacks being lowered by a steam crank. A guy rope was attached to the crane of the derrick to control the movements of the crane, and this rope was in the charge of a gangway man, whose duty it was to stand at the hatchway and call out to the men when the crane of the derrick had swung around so that the sacks of corn were ready to be dropped in the hold, and he further had au- thority to direct the derrick by means of the guy rope, and to direct the man who was working the crane when to raise and when to lower. The actual negligence which occasioned plaintiff's injury was a neglect in failing to use the guy rope to check the swinging of the derrick. The court of Queen's Bench held that even assuming that this gangway man was a superintendent, within the meaning of the section, that a negligent failure to 72 The New York Employees^ Liability Act. use the guy rope was not a negligent act done in the exercise of superintendence, but that the accident arose from the negligence in the capacity of workman. In Joseph V. George G. Whitney Go., 177 Mass. 176, plain- tiff was injured by the negligence of defendant's super- intendent. The plaintiff had has hand between the jaws of an embossing machine, the power being turned off. Another workman had called to the superin- tendent for instruction, and the superintendent came and leaned over between plaintiff's machine and that of the other workman, with his back to plaintiff's machine, and accidentally touched it so as to start it up. The jaws closed and cut off the greater portion of the plain- tiff's hand. The court held that the negligence was not done in the exercise of superintendence. " The precise place in which Meyer (the superin- tendent) chould be while giving his directions, the way in which he should stand and sit, his care in managing his body in the place he selected, were too much the accident of his independent personality and too remote from the act of giving the orders for us to charge the defendant with the consequences of his neglect in that regard. " The matter may be stated in a different form. If the motion of Meyer which caused the injury may be regarded as a part of the act of superintendence, the fact that he was superintendent was in no way a neces- sary element in producing the injury, but we are of the opinion that by a true construction of the statute, the superintendence must contribute as such, and that when, as here, it had nothing to do with the injury, qua super- intendence, the case is not within the act." Negligent Acts of Superintendence. 73 " The employer is not answerable for the negligence of a person entrusted with superintendence, who, at the time, and in doing the act complained of, is not exer- cising superintendence, but is engaged in manual labor — the duty of a common workman. The law recognizes that a common workman may have two duties — that he may be a superintendent for some pur- poses, and also an ordinary workman, and that, if negli- gent in the latter capacity, the employer is not answer- able." ( Cashman v. Chase, supra. ) Other cases hold- ing that the negligent act must in itself be an act of superintendence are given below.* Sec. 31. Negligent acts of superintendence. 1. Superintendence and manual labor. — Much diffi- culty is found in determining what acts are acts of superintendence, and there are many border-line cases. This is particularly true in cases where the negligent act of superintendence is closely connected in point of time with an act of manual labor. In Osborne v. Jack- son, 11 Q. B. D. 619, plaintiff was a bricklayer in de- fendant's employ and was at work near a shoring where scaffolding was being taken down by other workmen. Defendant's foreman personally handed a plank in this scaffolding to another workman and called to him to 8. Joseph V. George O. Whit- 187; O'Brien v. Looh, 171 Mass. ney Co., 177 Mass. 176; Malcolm 36; O'Keefe v. Broumell, 156 V. Fuller, 152 Mass. 160; Mc- Mass. 133; Cunningham v. Lynn Cauley v. Noroross, 155 Mass. 8tr. Ry. Co., 170 Mass. 298; 584; Fitzgerald v. B. & A. R. R. Dantzler v. Bardeleben Coal Co., Co., 156 Mass. 293; Oreen v. 101 Ala. 309; Kellard v. Rooke, Smith, 169 Mass. 485 ; Douin v. 19 Q. B. D. 585 ; Osborne v. Jach- Wampanoag Mills, 172 Mass. son, 11 Q. B. D. 619. 221; Fleming v. Elston, 171 Mass. 74 The New York Employers^ Liability Act. take it. The laborer took the end of it, but was so far off that he could not hold the plank, and the foreman letting go of his end of the plank, it slipped and knocked down the shoring, which fell upon and injured plaintiff. It seems extremely doubtful as to whether this foreman was not engaged in an act of manual labor rather than of superintendence, but the court held that in directing the laborer to take the plank when he could not do so safely, the foreman thrust upon him a duty which he could not safely perform. (Compare with Flet v. Hunter Arms Co., 74 App. Div. 572, 77 Supp. 752. ) The rationale of this decision is certainly wrong. The court says: "If Thomas (the foreman) had directed another to do what he did himself, he would surely have been negligent in the exercise of superintendence." This test suggested by the court does not seem to have been applied in other English cases or in this country. In Malcolm v. Fuller, 152 Mass. 160, the facts shown were these : A quarryman in general charge of a quarry, finding that wadding still remained in a hole which he assisted in drilling and loading with powder and had at- tempted to discharge, negligently assumed that the charge had exploded and passed off through another hole by a connecting crevice in the rock, and, deciding to drill out the wadding, directed a fellow servant to hold the drill while he did the striking, whereupon the charge exploded, injuring the workman. The defend- ant insisted that, assuming that the foreman was a general superintendent, that, notwithstanding, in the act that caused the plaintiff's injury, he was acting as a servant and was not exercising superintendence. " The evidence shows that Stewart (the foreman) had Negligent Acts of Superintendence. 75 been engaged in manual labor in drilling the holes for blasting, and that his act in striking the drill, held by the plaintiff, was the immediate occasion of the ex- plosion which caused the injury ; that the plaintiff does not rely upon any evidence of negligence of Stewart in the manner of drilling the holes or of striking the drill. The negligence which the evidence tended to prove is the manner of clearing out the hole in which the tamp- ing remained after the discharge. If Stewart was superintendent, he was exercising superintendence in determining the manner in which the hole should be cleared out and in directing the plaintiff to assist, and himself assisting in drilling it out. In that rgspect it is immaterial whether he himself struck the drill or ordered another person to do it." In Roach v. Lowell Bleachery, 181 Mass. 480, an extreme case, plaintiff was a workman in defendant's bleachery, and sued for injuries received while tighten- ing certain cylinders, called binders, connected with a washing machine operated by the plaintiff, the injuries being occasioned by reason of the negligence of one Royer, the defendant's superintendent, in starting plaintiff's machine. In order to tighten the machine plaintiff had to stop it and go up to another floor, out of sight of it. At the time of the accident the binders had become loose and the plaintiff was tightening them, having first stopped his machine, when the super- intendent came along and personally set the machine running, by reason of which the plaintiff was caught in the shafting above. The court held that a recovery by the plaintiff was proper on the theory that it was an act of superintendence which caused the injury. 76 The New Yoek Employers' Liability Act. 2. Failure to direct or warn. — In Davis v. N. Y. & E. R. R. Co., 159 Mass. 532, the plaintiff was injured by reason of his foreman failing to give warning of the ap- proach of a train. Plaintiff was employed by the rail- road company as one of a gang of workmen engaged in repairing the track. The nature of his work required him to bend over with his back in the opposite direction from that in which the train was coming. The court held that this employee had the right to rely upon the fact that it was the duty of the foreman of the gang to warn him of the approach of the train, and if, by rea- son of the foreman's neglect to give him such warning he was struck by the train and injured, he could main- tain an action against the corporation for his injury, alleging that the foreman, being the person entrusted with and exercising superintendence, negligently failed to give notice of the train's approach. ( Compare with New York common law rule in McCosker v. Long Is- land R. Co., 84 N. Y. 77.) In McCoy v. Inhabitants of Westbury, 172 Mass. 504, plaintiff was injured whilst engaged in digging a sewer trench by reason of the bank, upon which defendant's superintendent was standing, and at a place where there was a crack in the earth, falling upon him, the superintendent with it. The superintendent, who had general control of the whole work of digging the trench, walked along the bank and stopped to look down at the workmen. On these facts the jury was justified in holding that the superintendent was exercising over- sight of the work, and, therefore, engaged in an act of superintendence; the jury was also entitled to consider whether or not it was negligent for the superintendent Superintendent's Neglect to Warn. 77 to stand where he did without giving any warning to the plaintiff. (See, also, Cole v. Lawrence Mfg. Co., 178 Mass. 295. In Jarvis v. Goes' Wrench Go., Ill Mass. 170, plaintiff was a boy fifteen years of age who was injured while sawing blocks with a circular saw. He had been doing this work for two or three days, but on the morning of the accident a block of wood, which he was sawing, bounded back and his left hand went under the saw. He had received no warning when put to work upon the saw that wood was likely to bound back in this fashion. The danger was one well known to the defendant but not obvious to an inexperienced workman, and the court held that the jury was justified in finding it negli- gent for defendant's superintendent to set the plaintiff at work without instruction on this point. (See, also, Wheeler v. Wason Mfg. Go., 135 Mass. 294, to the same effect. ) In Grimaldi v. Lane, 111 Mass. 565, plaintiff was a workman in defendant's quarry, his employment con- sisting of breaking stone. He had nothing to do with the blasting and knew little about it. Plaintiff dis- covered a blasting hole loaded with dynamite cartridges which had failed to explode and informed defendant's superintendent, who, thereupon, ordered a workman to unload the hole, which the workman attempted to do by using an iron scraper, which was a dangerous instru- ment to use for that purpose. The superintendent stayed at the hole to watch the scraper for some minutes, and then left without warning the plaintiff, who was working near by, to move away. An explosion followed, caused by the use of the scraper, and plaintiff 78 The New York Employees^ Liability Act. was injured. The court held that there was suflScient evidence of negligence on the part of the superintendent, and that plaintiff could not be held guilty of contribu- tory negligence as the risk of an explosion, under the circumstances of the case, was not obvious to a man whose experience in dynamite was no more extensive than plaintiff's was shown to have been. 3. Negligent directions or omissions. — In Green v. Smith, 169 Mass. 485, plaintiff's intestate was killed by an explosion of dynamite in a tunnel. It appeared that after a blast had been exploded in the tunnel, defend- ant's workmen, including the intestate and the person who was in superintendence of the work, returned down the shaft to the tunnel, carrying dynamite with them. The only survivor of the explosion testified that as soon as they reached the tunnel the superintendent told the witness to go and get the loading stick, which he did and gave to another workman near whom the superin- tendent was standing; that the witness saw the dyna- mite placed in the holes, after which the superintendent gave them orders to go after the main wire; that the witness had gone fifteen or twenty feet when the ex- plosion occurred, and that this was from fifteen to twenty minutes after they started down the shaft. An expert witness testified that the explosion of dynamite was caused by the rock in which the hole was drilled becoming heated by the drilling and that it was danger- ous to place dynamite in a rock which was so heated, and that in his opinion the second explosion was caused by heated holes. The court says: "There was some evidence for the jury that the defendant's superin- tendent, whilst exercising superintendence, directed Negligent Diebctions. 79 dynamite to be put into a hole while the rock was heated from the effect of a recent explosion ; that under such circumstances an explosion was likely or liable to occur, and that the explosion which followed and caused the death of the plaintiff's husband was the result of negligence on the part of the superintendent in thus directing dynamite to be put in before the rock had begun to cool. In Murray v. Rivers, 174 Mass. 46, the plaintiff was injured by the premature falling of the hammer of a pile driver. The defendant's superintendent gave the engineer in charge of the pile driver word to start the hammer before he had received word from the plaintiff, who was at work below in the crib in the ground under the pile driver, that he was ready for the hammer to fall. Plaintiff had his right hand on the end of the pile that was being driven to the ground at the time the superin- tendent gave the direction, and it was injured. The case was properly sent to the jury. In Eaves v. Atlantic Novelty Mfg. Go., 176 Mass. 369, plaintiff was injured by having her fingers cut off by a machine known as an " ending machine " while in de- fendant's employ. The negligence claimed was that a person exercising superintendence negligently ordered the plaintiff to start the machine when he had reason to know that it was in an unsafe condition to start, and dangerous for a person in plaintiff's position to obey the order, and while the plaintiff did not know of the danger. Plaintiff's claim was that she had been work- ing on this machine when it became apparent that there was something the matter with it The superintendent's attention was called to it and he came to see what was 80 The New York Employees^ Liability Act, the matter and to remedy the trouble if there was any. He got down behind the machine and ordered the plain- tiff to start the machine up. She did so, and by obeying the order plaintiff was injured. A recovery for the plaintiff was sustained. In McCabe v. Shields, 175 Mass. 438, defendant's fore- man, while acting as superintendent, was held negli- gent in placing a dangerous appliance in the hands of a workman with instructions to use it. In O'Brien v. Nute-Hallett Co., 177 Mass. 422, plain- tiff was a laborer employed by defendant in delivering grain. Plaintiff and defendant's superintendent ex- amined a bin in which plaintiff was to work. The bin was dark and the plaintiff told the superintendent that he could not see the bottom of it, whereupon the super- intendent told him it was all right and to come away. He afterwards ordered plaintiff to go into the bin and go to work. Plaintiff jumped in and instead of falling on the floor or bottom of the bin, fell astride a joist and was injured. The court held that the assurance of the superintendent that the bin was all right when he and the plaintiff were examining it, coupled with the order to come away from it and the subsequent order for the plaintiff to get into the bin, justified a finding that the plaintiff was in the exercise of due care and that the superintendent was negligent in ordering the plaintiff into the bin. In Cavagnaro v. Clarke, 171 Mass. 359, plaintiff was engaged in carrying bricks in a wheelbarrow from an elevator to masons at work on a building. He was re- turning with his empty wheelbarrow for the purpose of Negligent Directions. 81 descending on the elevator. Smith, defendant's super- intendent, was standing on the elevator as he ap- proached it, and it was customary when a person had so placed himself on the elevator for any one standing near to press the button nearby as a signal to lower the elevator. Plaintiff asked the foreman if he had room to put his wheelbarrow on, and he replied that there was not much room. Plaintiff then put the wheel- barrow on the elevator and had one foot on it when it started down, causing him to fall. The foreman him- self testified that he jumped upon the elevator and said " let her go ;" that the workman who was standing near pressed the button and shouted " stand clear," and a minute or so later the elevator started down, and that the first he knew of the plaintiff being near was when he turned and saw him falling. The court said the order " let her go " was itself an act of direction or oversight tending to control others and to vary their situation or action because of his direction. ( Cashman V. Chase, 156 Mass. 342. ) Having given the order and seen that it was followed by the signal, the giving of which would cause the elevator to descend, it was his duty to countermand the order and to take means to prevent the elevator from going down, if, after giving the signal, he had reason to suppose that another person was about to attempt to put a wheelbarrow on the plat- form, and that he had such reason may be found from the plaintiff's testimony. This duty of countermanding the order which he had given, or of taking some means to prevent the injury to a workman whom he knew Avas about to put himself in danger by doing an act which 6 82 The New York Employees' Liability Act. would have been safe but for the fact that the elevator was about to go down, was itself a duty of superin- tendence, a duty to perform an act of direction or over- sight tending to control others, and which his position as superintendent required him to give, and made it negligence in his work of superintendence not to give. {McCauley v. Norcross, 155 Mass. 584.) In Millard v. West End Street Ry. Co., 173 Mass. 512, a pile of lum- ber had been erected for a temporary purpose in a care- less manner. Defendant's superintendent directed plaintiff to go upon the lumber, and he was injured by complying with the direction. Held, to be negligence of the superintendent. In O'Brien v. West End Ry. Co., 173 Mass. 105, a motorman employed by defendant was injured. Defendant's superintendent gave an order to the motorman, which placed him in a dangerous posi- tion if a car should come forward on the other track. While the motorman was in this position the superin- tendent gave an order to the motorman of another car on the other track, standing six or eight feet from the front end of the plaintiff's car, to come ahead. As the car did so, plaintiff, while raising himself from a stoop- ing position, was caught between the guard rails of the two cars and injured. Held, to be a negligent direction given in the exercise of superintendence. The case last cited is similar in its facts to the case of McCoslcer v. L. I. R. R. Co., 84 N. Y. 77. In this case McCosker, plaintiff's intestate, was employed by and under the control and supervision of a yardmaster. While engaged under the yardmaster's direction in at- taching a damaged car standing on the track in the yard to another car, the yardmaster negligently sig- Superintendent's Failuee to Inspect. 83 nailed to the engineer, whose train stood upon the track, to back' his train, which he did without signalling or warning, and in consequence, McOosker was crushed between the cars, receiving injuries which caused his death. The New York Court of Appeals held under the common law that the yardmaster was fellow servant with the deceased as to all acts done in the range of their common employment, except those done in the performance of some duty Avhich defendant owed to its servants, that the act in question was not one of that character, and that, therefore, defendant was not liable. 4. Failure to inspect or superintend. — In McGauley v. Norcross, 155 Mass. 584, plaintiff was injured while working in the erection of a large building under de- fendant's superintendent. Some iron beams were placed about three and one-half feet from an opening on one of the floors and had been there for two or three days before the accident. On the day of the accident defendant's superintendent, who was on crutches and in the exercise of his duty, was walking about the floor upon which the beams were placed. In order to pass between a pile of planks and these beams he touched the beams and they swung round on other beams and fell through the hole in the floor upon the plaintiff. The court says that the fact that the superintendent himself happened to be the person who pushed the beams with his foot is of no importance, because that is not an act of superintendence. If, however, the beams were so left that one of them would be liable as a natural consequence from some intervening cause or agency to be so moved that it might fall through the floor, the fact that an intervening act or agency occurred which 84 The New York Employees' Liability Act. directly produced the injuries, resulting, would not necessarily exonerate the defendant from responsibility. Superintendence is necessary in order to guard against injuries from such intervening and inadvertent acts of careless persons as are likely to happen, and should be guarded against. The question is whether the moving of the beams was so likely to occur that it should have been provided against by the superintendent. This question was one properly for the jury.* In Slattery v. Walker & Pratt Manufacturing Co., 179 Mass. 307, the court held that the proprietor of a factory was liable to an employee who was injured by the breaking of a check valve of a hoisting machine. The defendant's superintendent, without ascertaining how much pressure the valve would stand, had negli- gently substituted an insufficient value for the one which came with the machine, and the injury was oc- casioned by the plaintiff's putting too much pressure upon it The court held that the defendant company was liable for this act of negligence by the superin- tendent In Reynolds v. Barnard, 168 Mass. 220, the personal injuries were caused to plaintiff by the breaking of a temporary staging put up by workmen for their own use while slating a roof. The staging broke by being over- loaded with slate, and the court held that it was a ques- tion for the jury whether a careful oversight of the work by the superintendent would not have prevented the loading of the staging with slate to such an extent as to make it dangerous. 0. Compare with Carroll v. Willeutt, 163 Mass. 221. What Acts are not Superintendence. 85 Sec. 32. What are not acts of superintendence. The meaning of the words " exercising superintend- ence," " whilst in the exercise of superintendence," will be made clearer possibly by a consideration of some of the cases in which the acts of the negligent person were held to be not acts of superintendence. In Riou v. Rock- port Granite Co., 171 Mass. 162, plaintiff was injured by the explosion of a can of blasting powder which de- fendant's superintendent had put on a sliding ledge on the side of the pit in defendant's quarry above the place where the plaintiff was working. The court says: " If the work of blasting was in some sense in the nature of superintendence, the mere act of fetching and putting down a can of powder preparatory to blasting could hardly be described as an act of superintendence or as anything more than an act of manual labor on the part of Labelle (the foreman). When a person is employed to work with his hands as well as to exercise superin- tendence, as was the case with Labelle, the line must be drawn somewhere between what are acts of superin- tendence and what are acts of manual labor, or all that he does must be regarded as superintendence or manual labor, which manifestly would be unjust. We think that in this case the act of fetching and putting down a can of powder must be regarded as an act of manual labor. In Cashman v. Chase, 156 Mass. 342, the plaintiff, while at work in the hold of a vessel, was struck by a hook swinging at the end of a fall of rope which escaped from the control of a fellow workman. The fall was raised and lowered by a steam engine placed on a lighter between the vessel and the wharf. The orders to raise 86 The New Yokk Employees^ Liability Act. and lower were given by a workman in the hold to the stageman on the deck of the vessel and by him repeated to the engineer. The hook was in the hands of a work- man in the hold, and it was necessary to lower the fall to enable him to attach the hook to a bundle of lathes. The order to lower was correctly given to the stageman and repeated by him to the engineer, who raised the fall when he was told to lower, and the hook was thus pulled away from the workman who held it and swung against the plaintiff. The plaintiff contended that the engi- neer was a person entrusted with and exercising super- intendence, and whose sole and principal duty was that of superintendence, and that the act of raising the fall was an act of superintendence After considering the question as to whether the facts in the case showed that the engineer was a superintendent, the court said that aside from this the act of improperly raising the fall was not an act of superintendence. It was evident that in operating the engine, he was doing the work of a laborer acting upon the directions of others and not directing them. In Cunningham v. Lynn Str. Ry. Co., 170 Mass. 298, the foreman of a repair shop ordered the employees under him to take a defective truck out of the shop, and, directing their movements, assisted them in so doing, and performed some of the work himself. The court held that the facts would not justify the jury in finding that while so working the foreman was exercising super- intendence. In O'Keefe v. Brownell, 156 Mass. 133, a truck con- sisting of a plank about four feet long and a foot or more wide was used by defendant in his business. What Acts aeb not Superintendence. 87 Across one surface of this truck and near its centre was attached an iron roller, revolving upon an axis held to the side of the plank by suitable bearings. When placed upon the floor with the roller down, the instru- ment could be moved about with a load resting on the plank, and when placed with the plank downward it was intended to remain stationary, and beams or planks could then be moved by resting them upon the roller and moving them when so started. It was a movable tool in good order. It was liable when used for cer- tain purposes at the edge of an open well to fall into the well, to prevent which, it could be fastened to the floor on which it rested or blocked with a cleat, but when used as a vehicle on which to transport articles, such fastening or blocking would wholly prevent such use. While placed with the 'plank down, and station- ary and being used by fellow workmen in landing upon the floor of an upper story heavy planks, which were being hoisted by a block and fall, the truck fell through a hole in the floor upon plaintiff's intestate, who was on the floor below. It was held that the duty of using this truck in a safe manner was the duty of ordinary workmen who handled and used it rather than a duty of the employer, or a duty of superintendence, and the omission to use ap- pliances for blocking or fastening was not the negli- gence of a superintendent but the negligence of fellow workmen. In Fleming v. Elston, 171 Mass. 187, the cause of plaintiff's injuries were somewhat obscure. He was em- ployed in taking down a building, and in lifting a piece of ironj which he was not able to lift alone, and which 8S The New Yoek Employees' Liability Act. had become loosened from the outer wall and had to be lifted from the floor. While in this position something struck him upon his leg and he lost his balance and fell into the street and was injured. There was evidence that the superintendent was near the plaintiJBf just be- fore the accident with a crowbar in his hand, and the plaintiff sought to raise the inference that he had been struck by the crowbar. The court says : " None of the circumstances appear, and even if it were admitted that the injury was caused by the superintendent's negli- gence, there is nothing to show that it was negligence in the exercise of superintendence rather than manual labor, in doing which the superintendent stood like any fellow servant Permitting himself or another la- borer to be in the plaintiff's neighborhood with a crow- bar in his hands, cannot be found to be negligent super- intendence without more, merely because the event showed that it was possible to do harm by negligently handling or by dropping the bar. In Whelton v. West End Street Ry. Co., 172 Mass. 556, a person was employed by a street railway com- pany as car shifter, whose duty it was to get cars ready for conductors and motormen. Upon the occasion when the accident occurred he went into a car house for a car which had to be moved to the main track by means of a transfer table, moved by electric power and oper- ated by the car shifter himself. He ran the car on to the table, handed the trolley rope, which had to be shifted to the other end of the car, to the conductor, saying, " here's the rope," and when the conductor had walked with the rope half-way around to the middle of the car the car shifter started the car. The con- Wanton Injuries by Superintendents. 89 ductor called on him to wait, as a spring attached to the roof of the car was caught, and the conductor, while trying to free the spring, was injured by the moving of the table. There was a foreman who had charge of the car house, but he was not present at the time of the accident The court held that neither the starting of the table, nor the failure to stop it, were acts of super- intendence. Wanton and wilful acts hy superintendents. — There is nothing in the wording of the liability acts which expressly covers wanton or malicious acts done by superintendents. Nor, however, is there anything in the wording of the act which would necessarily restrict the scope of the law to negligent acts and omissions. While it is still uncertain in most of the States whether the master is responsible under the act for wilful in- juries inflicted by a superintendent, it is settled in Alabama that such liability exists, and that contribu- tory negligence is no defence when the injuries are thusi occasioned. Nor does the employee assume the risk of injury from the wilful act of a superintendent. (See Southern By. Co. v. Moore, 128 Ala. 434; Louisville & Nashville R. R. Co. v. York, 128 Ala. 305 ; Louisville & 'Nashville R. R. Co. v. Trammell, 93 Ala. 350; Kansas City M. & B. R. R. Co. v. Crocker, 95 Ala. 412; Rich- mond & D. R. R. Co. V. Farmer, 97 Ala. 141 ; Lee v. De Bardelehen Coal & Iron Co., 102 Ala. 628; Chambliss v. Ma/ry Lee Coal, etc., Co., 104 Ala. 655; Alabama & C S. R. R. Co. V. Hall, 105 Ala. 599; L. d N. R. R. Co. v. Markee, 103 Ala. 160; L. & N. R. R. Co. v. Crawford, 89 Ala. 245; L. & N. R. R. Co. v. Watson, 90 Ala, 68.) 90 The New Yoek Employees' Liability Act. It is diflScult to understand how a wanton and ma- licious act can be done " in the exercise of superintend- ence " and be in itself " an act of superintendence," and this point does not seem to be discussed in the Alabama cases. A New York case, Gabrielson v. Waydell, 135 N. Y. 1, holds that the risk of being assaulted and injured by an officer of a vessel is one of the assumed risks which a sailor takes in his employment, and that the ship's owner is not liable for such injuries. Notice of Injury — Statutes Oompaeed. 91 CHAPTER IV. Notice of Injury. Sec. 33. The statutes compared. No notice of tlie time, place or cause of injury is re- quired in Indiana or Alabama. In Massachusetts and Colorado a notice must be given within sixty days after the accident. The action must be commenced, in Massachusetts and New York within a year after the accident, and in Colorado within two years. Under the Massachusetts law the notice must be in writing, signed by the person injured, or by some one in his behalf, but, if for physical or mental incapacity, it is impossible for the person injured to give the notice within the time provided, he may give the same within ten days after such incapacity is removed, and, in case of his death, without having given such notice, " and vAthout having been for ten days at any time after his injury of sufficient capacity to give the notice, his exe- cutor or administrator may give such notice within thirty days after his appointment." The Colorado law has no such provision relieving plaintiff from the opera- tion of the limitation upon the time of commencing the action. In every case the notice must be given within sixty days after the accident. The Massachusetts, Colo- rado and New York statutes, in substantially the same language, provide that a notice given under the provi- sions of this act shall not be held invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it is shown that there was 92 The New Yoek Employees' Liability Act. no intention to mislead, and that the employer was not, in fact, misled thereby. The English law provides that an action for the re- covery of compensation under the act shall not be main- tainable unless notice that injury has been sustained is given within six weeks and the action is commenced within six months after the accident, or, in case of death within twelve months after the death, provided, that in case of death, the want of such notice shall be no bar to the maintenance of an action if the judge shall be of the opinion that there was reasonable excuse for such want of notice. The notice required by the English act includes the name and address of the person injured, which is not required in New York or Massachusetts, and a statement in ordinary language of the cause of the injury and the date at which it was sustained. The English law does not require a statement of the place where the injury occurred. The provisions of the Eng- lish statute regarding service of notice are substantially similar to the New York law and will be considered later. The English law further provides that the notice shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action is of the opinion that the defendant is pre- judiced in his defense by the defect or inaccuracy, and also that the defect or inaccuracy was for the purpose of misleading. The notice required by the New York statute contains features in common with both the Massachusetts and the English law, but it differs in important particulars from both. Under the New York statute, section 2, no action for the recovery of compensation for injury or death under this act shall Notice by Executors. 93 be maintained unless notice of the time, place and cause of injury is given to the employer within 120 days and the action is commenced within one year after the oc- currence of the accident causing injury or death. In the time allowed for giving notice it will be seen that the New York statute is much more liberal than either the English, Massachusetts or Colorado laws. The contents of the notice required is similar to that of the Massachusetts law. It must be in writing, signed by the person injured, or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time pro- vided by the law he may give the notice within ten days after his incapacity is removed. Sec. 34. Notice by executors or administrators. The New York statute is more liberal than the Massa- chusetts law in cases where the injury results in death. Under the Massachusetts law, if an employee is injured and dies, the right of action is absolutely under the Liability Act if the employee survive the accident ten days, and during these ten days was mentally clear minded enough to authorize or procure another to give the notice for him.^ This provision is omitted by the New York statute, and the statute provides that in case the employee dies without having given notice, his exe- cutor or administrator may give such notice within sixty days after his appointment. It would appear, therefore, that a liberal construction of this notice clause would permit the executor or administrator to 1. yash V. Inhahitcmts of Barclay v. City of Boston, 173 South Hadley, 145 Mass. 105; Mass. 311. 94 The New York Employees^ Liability Act. give the notice required at any time within one year. As will be seen later (sec. 37) notice must be served before the action is brought, and as the action must be brought within a year the notice must, therefore, be served within that period. This statement is, however, subject to one qualificar tion. That is where an employee who has been physi- cally and mentally able to give the notice dies without giving it more than 120 days after his injury was received. In such a case it is not to be assumed that after the right of action of the employee has been de- stroyed by laches, such right of action is revived in his executor or administrator by reason of the death of the employee without having given notice, or when the right of the employee himself had expired. The words " in case of his death without having given such notice," should reasonably be construed as including the idea that right to give such notice still remains in the in- jured employee at the time of his death, either by rea- son of the 120 days allowed by statute not having ex- pired, or by reason of his mental. or physical condition being such that the time limit of 120 days has not be- gun to run. Sec. 35. Service of notice. The Massachusetts act provides for a written notice given to the employer, but contains no other provision regarding its service upon him. The English act of 1880 and the New York act both contain provisions regulating the manner in which notice shall be given. The English law provides (sec. 7) that notice shall be served on the employer, or, if there be more than one Service of Notice — Statutes Compared. 95 employer, upon one of such employers. It may be served by delivering it to the employer in person, wherever he may be found, or at his residence or place of business. Notice can be served by post by registered letter addressed to the person on whom it is to be served at his last known residence or place of business, and, if so served, shall bedeemed to have been served at the time when a letter containing the same would be de^ livered in the ordinary course of post, and, in proof of the service of notice, it shall be sufficient to prove that the notice was properly addressed and registered. When the employer is a corporation, or a body of per- sons incorporated, notice shall be served by delivering the same at the office of such employer, or, if there is more than one office, at any of its offices, or, the notice may be served by sending it by post in a registered letter addressed to the office. The New York statute in the main follows the English law. Notice, under the New York law (sec. 2), shall be served on the employer, or, if there is more than one employer, upon one of such employers, and may be served by delivering the same to the employer, or by leaving it at the residence or place of business of the person on whom it is to be served. The notice can be served by mail by letter (which need not be registered), addressed to the person on whom it is to be served at his last known place of residence or place of business. If served by letr ter, the notice is deemed to have been served, at the time any letter containing the same would be delivered in the ordinary course of post. Service can be had on a corporation by delivering the notice at the office or principal place of business of the 96 The New York Employees' Liability Act. corporation, or by sending it by post to such address. It has been held in Massachusetts that the manner in which the notice is sent or given is immaterial if it be shown that the person entitled to notice actually re- ceived it within the statutory period. {Shea v. N. Y., N. H. d H. R. Co., 173 Mass. 177.) A somewhat contrary doctrine is laid down, however, in Eealey v. George F. Blake Mfg. Co., 180 Mass. 270. The defendant was a Jersey corporation and had exe- cuted a power of attorney as required by Massachusetts law, appointing the commissioner of corporations as its attorney upon whom all lawful processes in any action or proceeding might be served. A notice of the time, place and cause of plaintiff's injury was served by plaintiff on this commissioner, who sent to the de- fendant a complete copy of the notice within thirty days after the happening of the accident. No other notice was given and the court held that this was insufficient, and that notice to the commissioner was not notice to the corporation, notwithstanding the fact that the notice was proper in form and the commissioner sent an exact copy to the defendant. The court held that while this notice could be given to the defendant wherever he could be found, whether within or without the State, the notice given by this commissioner was not given by him as an agent of plaintiff or on plaintiff's behalf, but sim- ply as a public officer acting in the discharge of a public duty. " Since he was not in fact an agent of either party, and did not act or intend to act as such, the plaintiff cannot now, on the ground of attempted or intended Excuses foe Failure to Notify. 97 agency, ratify the act as his or hold the defendant as though it were his act." ^^ The construction given to the Massachusetts law in this case is far less liberal than has been given in quite similar cases in New York, under statutes requir- ing notice to municipalities in actions for negligence against them and will probably not be followed in the construction of the New York Liability Act. (Shaw V. City of New York, 83 App. Div. 212, 82 Supp. 44; Missano v. The Mayor, 160 N. Y. 123 ; Sheehy v. City of New York, 160 N. Y. 139.) In De Forge v. N. Y., N. H. & H. Ry. Co., 178 Mass. 59, the notice was given to the freight agent of the de- fendant, who testified that he sent it to the defendant's attorneys at New Haven in pursuance of general printed instructions directing him to send such notices to them, and that he had received such notices and so disposed of them for five years. The court does not determine whether this mode of service would, under ordinary circumstances, be legal, but held that where it appeared that this practice of giving notice in this way had been going on for so long a time without any objection being made, it might be found that defendant had recognized and acquiesced in the practice. (Citing McCabe v. Cambridge, 134 Mass. 484; Shea v. N. Y.. N. E. & H. Ry. Co., 173 Mass. 177.) Sec. 36. Excuses for failure to give notice. The provisions limiting the time in which to give notice are not strictly statutes of limitations but rather la. A notice signed "C. & T., ciently shows authority to sign attorneys for A," purports to be it. Dolan v. Alley, 153 Mass. signed in behalf of A, and suflS- 380. 7 98 The New York Employees' Liability Act. constitutes a condition imposed upon the enforcement of a new remedy. ( Gmaehle v. Rosenberg, 80 App. Div. 541, 80 Supp. 705 ; Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203. The disabilities provided by the New York and Massachusetts acts which relieve the injured person or his representatives from the necessity of fu^ nishing the notice within the time limit have received consideration in several cases. The statute says that if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided ... he may give the same within ten days after such incapacity is removed." The burden is upon the plaintiff or his representatives to show the disability or incapacity, and the question is usually one for the jury. {Mitchell v. City of Worcester, 129 Mass. 525; Ledmdge v. Hathaway, 170 Mass. 348.) The dis- ability which will excuse the failure to give notice un- der the Massachusetts cases must be both physical and mental. If the employee is of sufficient mental capacity to explain his injury and its cause to another so that the notice could be given on his behalf, these cases hold that the employee's failure to do so within the time limit is a bar. {Cogan v. Burnham, 175 Mass. 391.) Under a highway statute requiring a similar notice the court says : " It has repeatedly been held that a plain- tiff cannot take advantage of this last provision of the statute if his physical and mental capacity would enable him to procure another person to give the notice in his behalf even though he could not give it person- ally." (Saunders v. City of Boston, 167 Mass. 595. If the plaintiff is conscious and mentally sound, but is confined in bed at home or at a hospital, he must cause " Physical or Mental Incapacity " Construed. 99 notice to be given and his personal inability to give it is not an excuse.'' These rulings of the Massachusetts courts on the meaning of the words " physical or mental incapacity," it is submitted, are unreasonable, not required by the statute and not in accordance with the decisions which hold that the statute is to be liberally interpreted in favor of the injured employee. ( Sec. 2. ) The statute says : " If from physical or mental incapacity it is im- possible for a person injured to give notice within the time provided he may give the same within ten days after such incapacity is removed." The construction placed upon these words by the case just cited gives no effect whatever to the word " physical " or the word " or," The statute is construed as though it read " physical and, mental incapacity," and under this con- struction both must co-exist to excuse the absence of notice. In nearly all of the cases cited below physical incapacity existed of such a character as absolutely to preclude plaintiff from personally giving notice, and the only ground on which the failure to give notice was held fatal was because plaintiff's mind was clear. Un- der the ruling of the Massachusetts cases the statute is interpreted as though it read, " if from mental in- capacity it is impossible for the person to give the notice within the time provided in said section or to authorize some one else to give the notice in his behalf." 2. Cogan v. Burnham, 175 Mass. 348; Lyons v. Cambridge, Mass. 391; McNulta v. City of 132 Mass. 534; May v. Boston, Cambridge, 130 Mass. 275; Saun- 150 Mass. 517; Mitchell v. War- ders V. City of Boston, 167 Mass. cester, 129 Mass. 525. 695; Ledvndge v. Eathaway, 170 100 The New Yoek Employees' Liability Act. It leaves out of consideration entirely the question whether the injured employee knew anyone who would consent to serve this notice in his behalf or any inability to give it other than that caused by mental incapacity. A man without friends who is seriously injured and who remains in a conscious state for sixty days though absolutely unable to deliver any notice in person or to investigate the cause of his injury, is absolutely pre- cluded, under the Massachusetts cases, from any right of redress under the statute. This rule is a harsh and illiberal one, unjustified by the wording of the statute itself and it is to be assumed it will not be followed by the New York courts. (See Barry v. Village of Port Jervis, 64 App. Div. 268; Williams v. Village of Port Chester, 72 App. Div. 505, 76 Supp. 631. This case last cited involves the consideration of a thirty day statute of limitations or the presentation of claims against a municipal corporation, which provided that no action for injuries caused by defects in sidewalks could be maintained without such previously given notice. The court held that this statute, in so far as it applies to a claim with respect to which the claimant was so injured as to be unable to present his claim within the period specified, is unreasonable and unconstitutional, and that a presentation of the claim within thirty days after the claimant has sufficiently recovered from his injuries to enable him to make it would support his action. Sec. 37. Defects in notice; statutory provisions. The English act provides (sec. 7) that a notice re- quired under the act shall not be deemed invalid by Defects in Notice. reason of any defect or inaccuracy in it, unless the judge who tries the action arising from the injury mentioned in the notice is of the opinion that the defendant is pre- judiced in his defense by such defects or inaccuracies, and is further of the opinion that the defect or inac- curacy was for the purpose of misleading. The judge further has power under the English law to excuse the entire absence of notice in death cases if he is of opinion that there is reasonable excuse for the want of such notice. The Massachusetts law and the New York statute provide that " no notice under the provisions of this section shall be deemed to be invalid or insufflcient solely by reason of any inaccuracy in stating the time, place or cause of injury, if it be shown that there waa no intention to mislead, and that the party entitled to notice was not, in fact, misled thereby." The important difference between the wording of the English statute and that of the Massachusetts and New York statutes should be observed. The English statute provides, as appears above, that the notice shall not be deemed invalid by reason of any defects or inaccuracy in it, etc. The Massachusetts and New York statutes provide only for cases of inaccuracy and not for casesi in which there is not merely inaccuracy in the statement of the time, place or cause, but an omission of one or all of these requirements. Under the English cases, therefore, the omission of one or more of the requirements may be excused unless the judge is of the opinion that this omission has pre- judiced the defendant, and, also, that the defect or in- accuracy was intended for this purpose; see Stone v. Hyde, 9 Q. B. D. 76, in which the notice was contained 102 The New York Employers' Liability Act. in a letter which omitted entirely a statement of the cause of the injury; also Keene v. Millwall Dock Co., 8 Q. B. D. 482, where there was an omission of the cause of the injury. In Carter v. Drysdale, 12 Q. B. D. 91, there was an omission of the date of the injury. In Prevesi v. Gatti, T. L. P. (vol. 4), 487, the cause of the injury and the address of the plaintiff were omitted and the date of the injury was misstated. In all these cases the notices were held not to be fatally defective. Under the Massachusetts and New York statutes plaintiff can claim relief from errors but not from omissions, by showing that he had no intention to mis- lead and that the defendant was not actually misled. Where there is, for example, no statement whatever of the cause of the injury, the omission is more than an inaccuracy and the notice is fatally defective. {Oard- ner v. Inhabitants of Waymouth, 155 Mass. 595; Fortin V. Inhabitants of Easthampton, 142 Mass. 486.) As will be seen later the construction of notices is ex- tremely liberal, and the courts will go to great ex- tremes in spelling out a statement of the time, place or cause from the language used rather than hold the notice a nullity. Technical defects in notice of injuries are less avail- able to defendants in Massachusetts than formerly by reason of a recent amendment to the Liability Law, which requires the defendant upon whom a defective notice has been served, to notify the plaintiff, or the person serving the defective notice, of the nature of the defect, and without such a notice given within five days, the defect is not available to the defendant on trial. "A defendant shall not avail himself in defense of Notice of Injury a Condition Precedent. 103 any omission to state in such notice the time, place or cause of an injury or damage unless within five days after receipt of a notice given within the time required by law and by an authorized person, referring to the injuries sustained and claiming damages therefor, the person receiving such notice, or some person in his be- half, notifies in writing the person injured, his executor or administrator, or the person giving or serving such notice in his behalf, that his notice is insufficient, and requests forthwith a written notice in compliance with the law. If the person authorized to give such notice, within five days after the receipt of such request, gives a written notice complying with the law as to the time, place and cause of the injury or damage, such notice shall have the effect of an original notice and shall be considered a part thereof." Sec. 38. The giving of notice a condition precedent. The constiiiction of this notice of injury clause, which is adopted by the Massachusetts courts, is that the notice itself must be given before the commencement of an action and is a condition precedent to the main- tenance of the action itself, and the same rule has been followed in England. [Healey v. George F. Blake Mfg. Co., 180 Mass. 270 ; Foley v. Pettee Mach. Co., 149 Mass. 294, 296; Yeginan v. Morse, 169 Mass. 142, at p. 146; Moyle V. Jenkins, 8 Q. B. D. 116, 118; Eeeney v. Mill- wall Dock Co., 8 Q. B. D. 482, 484.) In this respect the notice required by the Employers' Liability Act is similar to the well established rule adopted by New York courts in notices to municipalities of personal injuries. It is to be presumed that the same purposes are to be subserved by the notice required by the Lia- bility Law as are subserved by the notices required by 104 The New York Employers^ Liability Act. the various statutes incorporating municipalities, and which require notices of claim for injuries — that an in- vestigation can be made by the defendant of the claim and an adjustment of his liability made without resort to litigation. The rule in actions against municipalities is well settled in New York, that where a statute pro- vides for notice of the time, place and cause of injury, such notice is a prerequisite to the commencement of the action, and the failure to give such notice is a bar to the maintenance of a suit for injuries.* The commencement of an action, within the statutory period, is not sufficient even if the complaint gives the time, place and cause of the injury. (Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203; Curry v. Buffalo, 135 N. Y. 366-370; Yeginan v. Morse, 160 Mass. 142.) Sec. 39. Notice to be pleaded. The cases cited in the last section are all authorities upon the proposition that a notice of the time, place and cause of injury, being a condition precedent to the maintenance of an action against a municipality, must be pleaded in the complaint or the complaint is de- murrable. It is well settled that the same rule applies to similar notices required by the liability acts. (See Steffe V. Old Colony R. R. Co., 156 Mass. 262; Gmaehle 3. See Reining v. City of Buf- 586, 37 Supp. 465; White v. falo, 102 N. Y. 308; Curry v. Mayor, etc., 15 App. Div. 442. City of Buffalo, 135 N. Y. 366; The same rule has been held to Merz V. City of Brooklyn, 33 St. apply to actions under the Lia- Eep. 517, 128 N. Y. 617; Dawson bility Act. (Johnson v. Roach, 17. City of Troy, 49 Hun, 322; 83 App. Div. 357, 82 Supp. 203; Krall V. City of New York, 44 Omaehle v. Rosenberg, 80 App. App. Div. 259, 60 Supp. 661; Div. 641, 80 Supp. 705. Foley V. Mayor, etc., 1 App. Div. CONSTEUCTION OF NOTICES. 105 V. Rosenberg, 80 App. Div. 541, 80 Supp. 705 ; Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203. Sec. 40. Liberal construction allowed as to notice. It has been held by the New York courts that notices of this character relate to the remedy and not to the right, and a reasonable construction has uniformly been allowed in actions in which such notices are neces- sary.* As the court says, in Sheehy v. City of New York, 160 N. Y. 139, " While in an action like this the statute must be substantially complied with, or the plaintiff cannot recover, still, where an effort to com- ply with it has been made and the notice served, rea- sonably construed, is such as to accomplish the object of the statute, it should, we think, be regarded as suffi- cient." (See, also, Missano v. Mayor, 160 N. Y. 123; Shaw V. City of New York, 83 App. Div. 212, 82 Supp. 44.) A very liberal construction of the provisions re- quiring notice has been followed by the English courts.* While, as appears at section 36, a notice to be valid under the Massachusetts statutes must state the time, place and cause of the accident, and an entire omission to state any time or place or cause is fatal to the action under the statute; the courts are very liberal in con- struing the language of notices so that an inaccuracy shall not be fatal. For example, in Carberry v. 4. Masters v. City of Troy, 50 5. Carter v. Drysdale, 12 Q. Hun, 485; Sullivan v. City of B. D. 91; Clarkson v. Musgrave, Byraeuse, 77 Hun, 440; Gross v. 9 Q. B. D. 386; Keen v. Millwall City of Elmira, 86 Hun, 467; Dock Co., 8 Q. B. D. 482; Hearn Werner v. City of Rochester, 77 v. Philips, '£. L. R., vol. 1, 475; Hun, 33; Stedman v. City of Previsi v. Gatti, T. L. E., vol. 4, Rome, 88 Hun, 279. 487; Fortin v. Inhabitants of Easthampton, 142 Mass. 486. 106 The New Yoek Employees^ Liability Act. Inhabitants of Sharon, 166 Mass. 32, the notice was claimed to be defective for the absence of the state- ment of the cause, and the court held that the words, " thrown from her carriage caused by a defect in the road," while inaccurate, was not fatally defective. Other cases in which the courts have construed notice as inaccurate but not fatally defective under the act or under other statutes requiring notice of the time, place and cause are collected in the note.® Sec. 41. Question of intent to mislead one for the jury. As has been seen under the English act, the question of intent to mislead by insufficient notices and the effect upon the defendant of misleading notices are to be de- termined by the judge. The rulings of the English court follow in this respect the strict wording of the statute which requires the judge to pass upon such ques- tions. The Massachusetts courts have held that the question, whether an inaccuracy in stating time, place and cause of the injury was intended to mislead, and whether the party entitled to notice was misled thereby, are questions of fact for the jury.'' The province of the court seems to be simply in determining whether the paper which is claimed to have been a notice can in any sense be called such.* 6. McCabe v. Cambridge, 134 f^ 7. See Drommie v. Hogan, 153 Mass. 484; Bailey v. Everett, 132 !; Mass. 29; Beauregard v. Webb Mass. 441; Whiteman v. drove- Granite Co., 160 Mass. 201; Can- land, 131 Mass. 553; Fortim, v. terbury v. City of Boston, 141 Inhabitants of Easthampton, 142 Mass. 215. Mass. 486; Driscoll v. Fall River, 8. Shea v. City of Lowell, 132 163 Mass. 105, 39 N. E. 1003. Mass. 187. Intent to Mislead, foe Jury. 107 It has been held that the burden of proof is upon the plaintiff to establish not merely his own good faith in sending an inaccurate notice, but also to show that it did not mislead the defendant. (See Drommie v. Eogan, 153 Mass. 29 ; Liffin v. Inhabitants of Beverly, 145 Mass. 549.) Where from the face of the notice itself it is apparent that defendant could not have been misled by it because the notice itself has no tendency to mislead, the jury is authorized to find the notice suflfi- cient. (See Conners v. City of Lowell, 158 Mass. 336; Dolan V. Alley, 153 Mass. 380.) In determining whether the defendant has been misled the facts and circumstances showing defendant's knowledge of the details of the accident may be proved to show that no actual notice was necessary to acquaint him with the facts. In Drommie v. Hogan, 153 Mass. 29, the actual cause of the injury was a defective condition of a ledger board which broke and caused the staging on which plaintiff was at work to fall. The notice given con- tained no reference to the ledger board, but stated that the injury was caused " by reason of the defective or insufficient staging, and the fall of the staging." The defendant contended that he had been misled, and to meet this contention plaintiff showed that after the ac- cident defendant had come to the place where it occurred and helped carry away the plaintiff, and that at the time he did so the staging and the ledger board were lying in a heap upon the ground. This was held sufficient evidence to warrant a jury in finding that the plaintiff had no intention to mislead and that defend- ant was not misled. 108 The New York Employees' Liability Act. Eeference should be had to the New York cases, cited in section 40, which illustrate the liberality of the New York courts in the construction of similar notices under statutes calling for notice of the time, place and cause of injuries in streets. Sec. 42. Notice to indicate that claim is made for com- pensation. While there is nothing contained in the language of the section expressly requiring the notice to state that a claim for compensation is made, the notice must contain something to indicate its purpose as the basis for a claim for damages. (See Driscoll v. Fall River, 163 Mass. 105; Kennedy v. Lawrence, 128 Mass. 318.) In Driscoll V. Fall River, supra, the court says : " The notice is not to be construed with technical strictness, but enough should appear in it to show that it is in-' tended as a basis of a claim on behalf of the person who brings the suit." The amount claimed in compensation need not be stated in the notice. {Reed v. City of New York, 97 N. Y. 621.) Sec. 43. Notice need not state a cause of action. It is not necessary that the notice should contain a statement of the facts and circumstances which plain- tiff would be obliged to prove to make out a case in law for negligence, nor need he allege that the injury was occasioned by the negligence of any particular individ- ual. (See Werner v. City of Rochester, 77 Hun, 33.) As stated in Canterbury v. Boston, 141 Mass. 215, notices of this character are required not for the purpose of set ting out in writing the legal liability of the city or town What is a Sufficient Notice. 109 but for the purpose of calling the attention of the proper authorities to the physical objects in the highway, or to the physical condition of it, which caused the injury, that they may make the necessary investigation. {Bailey v. Everett, 132 Mass. 441; Dalton v. Salem, 136 Mass. 278; Lynch v. Allyn, 160 Mass. 248.) Sec. 44. What is sufficient notice? In Beauregard v. WeJ)b Granite Co., 160 Mass. 201, the notice described a defect in the ways, works and machinery, and charged negligence on the part of the person entrusted with, and exercising superintendence, and particularly state that deceased was killed " by a stone being precipitated upon him from your derrick, as a result of your negligence and the negligence of some person for whose negligence you are liable," The real cause of the death was that a stone fell upon the deceased through negligence in raising it without warn- ing being given to him. It was held that the notice was either sufficient notice, or, if insufficient^ was not fatally defective as there was no intention to mislead, and that, in fact, the defendant was not misled by it. In Lynch v. Allyn, 160 Mass. 248, the notice given set forth the time, place and cause of the injury, stating the cause to be " the falling of a bank of earth." The only objection taken by the defendant was that the notice did not refer to the defendant's superintendent or to his conduct. The negligence in the case was the negli- gence of the superintendent. The court did not think it was necessary that the notice should contain a refer- ence to the superintendent, and it was held that the cause of the injury was properly stated. It was not necessary for the plaintiff to state the cause of that 110 The New Yoek Employees' Liability Act. cause. (Citing Whitman v. Oroveland, 131 Mass. 553; Donahue v. Old Colony R. R. Co., 153 Mass. 356.) In Donahue v. Old Colony R. R. Co., supra, the notice is as follows : " The Old Colony Kailroad Company la hereby notified that on the 15th day of October, 1888, when within 100 yards northerly from the railroad station at Readville, Massachusetts, on that part of said Old Colony Railroad Company, formerly known as the Boston & Providence Railroad Company, I was injured by my right leg being caught between a dumping car and tender of an engine, I at the time, standing on the dumping car, which was the first car of a train of cars to which said tender of said engine was attached. Said injury was caused by reason of a broken bar on the dumping car, which allowed the dolly varden of the tender of the engine to run up against the end of the dumping car, which caught and injured my leg. This notice is given under the provisions of chapter 270 of the acts and resolves of Massachusetts of the year 1887, and of chapter 155 of the said acts of the year 1888." Held sufficient. In Brick v. Bosworth, 162 Mass. 334, a death case, the notice stated that injury was received as follows : " The cause of the death of my said husband was the falling of a derrick upon him, the same being improperly or in- securely fastened." This notice was held sufficient to entitle the plaintiff to recover either on the ground of the superintendent's negligence, or for a defect in the ways, works and machinery. In Coughlan v. Cambridge, 166 Mass. 268, it was held that a notice was not defective which alleged different causes of the same accident, each being adequately stated. Assumed Risks of Employment. Ill CHAPTER V. The Assumed Risks of Employment. Sec. 45. Assumed risks ordinarily not affected by liability acts. The decisions of the courts of the various States in which liability acts, similar to the English act, are in force are in accord on the proposition that these statutes have not changed the common law rules upon the doctrine of assumed risk.^ In the O'Malley case, cited below, the court says: " If the action were at common law it would be too plain for argument that the plaintiff took the risk of such accidents as that which happened." ..." But it is contended that under the statute referred to the rule is different. The statute does not attempt to take away the right of the parties to make such contracts as they choose which will establish their respective rights and duties." ..." But it would be unreasonable to attempt to require every one ever hiring laborers to have the best place and best machinery possible for carrying on his business. It would be an unwarranted construction of the statute which would tend to defeat 1. See O'Ualey V. South Boston 146 Mass. 261-267; Hale v. Gaslight Co., 158 Mass. 135; Cheney, 169 Mass. 268; Rooney v. Wood/ridge v. Washington Mills Cordage Co., 161 Mass. 153; Con- Vo., 160 Mass. 234; Cunningham nolly v. Hamilton Woolen Co., v. Lynn, etc., 8tr. Ry. Co., 170 153 Mass. 156; MoAuliffe v. Call, Mass. 298; Donahue v. Washburn 180 Mass. 361; Ladd v. Brockton A Moen Mfg. Co., 169 Mass. 574; Street Railway Co., 180 Mass. Ooodnovi v. Walpole Emery Co., 454. 112 The New Yoek Employees' Liability Act. its object to hold that laborers are no longer permitted to contract to take the risk of working where there are peculiar dangers from the arrangement of the place and from the kind or quality of machinery used. Nothing but the plainest expression of intention on the part of the Legislature would warrant giving the statute such an interpretation." ..." We have no doubt that any one may contract to take the obvious risks of danger from injury from defective machinery as well since the enactment of this statute as before." In England some slight confusion exists in the cases on the effect of the Employers' Liability Act of 1880 as to the defense that the risk of injury was assumed by the employee. In the case of Weblin v. Ballard, 17 Q. B. D. 122, the court was of the opinion that the statute had affected the doctrine of assumed risk. In construing the words in the first section of the act, which state that the workman shall have the same rights of compensation and remedies as if he had not been a workman of, nor in the service of the employer, nor engaged in his work, the court says : " What is the meaning of this? In our judgment it means that the workman, when he sues his master under the provisions of the act for any of the five matters designated in it, shall be in the position of one of the public suing and shall not be in the position of a servant theretofore when he sued his master. In other words, that the master shall have all the defenses he theretofore had against any of the public suing him, but shall not have any special defense that he theretofore had when sued by a servant." The Statutes and the Assumed Kisk Rule. 113 "What then is the result? It is this: that the de- fense of contributory negligence is still left to the em- ployer, but the defense of common employment and also the defense that the servant had contracted to take upon himself the known risks attendant upon the en- gagement are taken away from him, when sued by a workman under the act" This decision, so far as its ruling upon the defenses of assumed risk is concerned, has not been followed, and the later decisions of the English courts are in accord- with those of Massachusetts. ( See Yarmouth v. France, 19 Q. B. D. 647; Thomas v. Quarter maine, 18 Q. B. D. 685.) Similar rulings to those of the English and Massachusetts courts are to be found in Alabama. {Birmingham Ry. v. Allen, 99 Ala. 359.) Sec. 46. Statutory modifications of assumed risk in general. So far as a careful examination of the statutes has revealed, there are no statutes in force in the United States, other than theNew York statute, attempting to deal with the doctrine of assumed risk, or to modify that rule. There is, however, a provision somewhat similar to the New York statute contained in the Con- stitution of the State of Mississippi, which is given be^• low in a note.^ 2. Constitution, art. 7, sec. 193. where the injury results from " Every employee of any railroad the negligence of a superior agent corporation shall have the same or officer, or of a person having rights and remedies for any in- the right to control and direct jury suffered by him from the act the services of the party injured, or omission of said corporation or and, also, when the injury re- its employees, as are allowed to suits from the negligence of a other persons, not employees, fellow servant engaged in another 8 114 The New York Employees' Liability Act. A similar provision to that in the Mississippi Consti- tution is contained in the Constitution of South Carolina.' A provision somewhat similar to section 3 of the New York law is contained in the Revised Statutes of On- tario, chapter 160, section 6, which contains the follow- ing : " Provided, however, that such workman shall not, by reason only of his continuing in the employment of the employer with knowledge of the defect, negligence, act or omission which caused his injury, be deemed to have voluntarily incurred the risk of injury." Apart from the statutes quoted above, the New York law is the first attempt to deal by statute with the doctrine of assumed risk. Sec. 47. Necessary risks always assumed. The employee, by entering upon or continuing in a given employment, takes the employment subject to the usual risks inherent in the business itself, and which are necessary elements of the work to be done. This is presumed to be part of his contract of employment, and he can have no claim against his employer for in- juries resulting therefrom, for the employer owes him no duty of obviating such danger, neither can the em- ployee be heard to say that he did not so contract. His department of labor from that of appliances shall he no defense to the party injured, or by a fellow an action for injuries caused servant on another train of cars thereby, except as to conductors or one engaged about a different or engineers in charge of danger- piece of work. Knowledge hy an out or unsafe cars or engines employee injured of the defect or voluntarily operated hy them." unsafe character or condition of 3. Art. 9, sec. 15, Constitution any of the machinery, ways or of South Carolina. Necessary Risks Always Assumed. 115 action founded on an injury caused by a necessary risk or danger must fail on either one of two tlieories: 1st, that the law presumes that he had contracted to take the risk of an injury resulting from such cause, or, 2d, that the employer has violated no legal duty in failing to obviate the necessary dangers of the occupation. When the injury results from a necessary risk of the employment the defendant is usually entitled to a non- suit* Necessary risks have been indifferently described in the books as " risks of the service " and " ordinary risks," and if the language of some of the decisions were taken strictly, these risks are the only ones assumed by the employee under existing law. " It may, we think, be laid down as a general rule that the dangers con- nected with the business, which are unavoidable after the exercise by the master of proper care and precaution in guarding against them, are risks incident to the em- ployment and are assumed by those who consent to accept employment under such circumstances. Those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precau- tion on the part of those carrying on the business, and injuries which happen through neglect to exercise such care are not incident to the business, and the master is generally liable for dangers accruing therefrom." {McGovern v. Central Vermont R. R., 123 N. Y. 287.) 4. Bannigan v. L. & E. R. R. velope Co., 101 N. Y. 520; DeOraf Co., 157 N. Y. 244; Arnold v. D. v. N. Y. G. & H. R. R. Co., 76 i£ fl. R. Co., 125 K. Y. 15; Sisco N. Y. 125; Bohn v. Havemeyer, V. L. <6 H. R. Co., 145 N. Y. 296; 114 N. Y. 296. Stoeeney v. Berlin & Jones En^ 116 The New York Employees' Liability Act. As the court says in Pantsar v. Tilly Foster Mining Co., 99 N. Y. 368 : " The rule that the servant takes the risk of the service presupposes that the master had per- formed the duties of caution, care and vigilance Avhich the law casts upon him. It is these risks alone that cannot he obviated by a reasonable measure of pre- caution by the master that the servant assumes. (See, also, Bensinn v. Steinway, 101 N. Y. 552; Eickey vf. Taafe, 105 N. Y. 26. These quotations, however, are not accurate state- ments of the law under the more recent cases, and under these cases, as will be seen, the employe assumes at common law not only the necessary risks of a dan- gerous employment, but such other obvious risks as may be created either by his master's negligence or by a violation of the statute.^ Burns v. Nichols Chemical Co., cited in the note below, distinguishes between " necessary " risks or risks of a service and " obvious " risks. Plaintiff had been injured by falling through an elevator open- ing in a platform at defendant's factory. The in- jury resulted from the absence of a guard rail around the opening for the elevator. Plaintiff was familiar with the spot and accustomed to use the elevator in going to and from the platform from which he fell. Guard rails were required by the city ordinances. The trial court charged the jury that " a workman assumes 5. Enisley v. Pratt, 148 N. Y. 450 j Sherlock v. Bherlock, 08 372; Freeman v. Paper Mill Co., App. Div. 328, 72 Supp. 712; 70 Hun, 530, 24 Supp. 403; Burns v. Nichols Chemical Co., affirmed without opinion 142 N. 65 App. Div. 424, 72 Supp. 919. Y. C39; Crotcn v. Orr, 140 N. Y. Effect of Continuance at Employment. 117 the ordinary and obvions risks which are incident to the employment itself or which result from the dan- gerous environment into which the workman knowingly enters, provided the master has done all that his duty demanded of him with respect to securing the safety of his workmen. If this master did its duty in providing a reasonably safe place for this workman, then, as the plaintiff took the risks of his employment, he cannot recover." If the master " did not do its duty in that respect then you may find negligence on its part, and if you so find, and also find freedom from negligence on the part of plaintiff, you may render a verdict for plain- tiff, and you may find that there were no risks of the em,ployment involved here if you find that the master failed in its duty to the plaintiff." This charge was held erroneous on appeal under the cases of Enisley v. Pratt, 148 N. Y. 372, 70 Supp. 530, and Crown v. Orr, 140 N. Y. 450. Compare this charge, however, with section 3 of the Liability Act. This case was decided before the passage of the act Sec. 48. Continuance in employment and unnecessary risks; at common law. Where the defect or negligence is one known to the employee, and its dangerous possibilities are appreci- ated by him, and he still continues at his work, the fact of continuance is generally used as a deffense by the em- ployer in one of three forms: 1st, that the employee who knows and appreciates such a danger and continues at work without any change in the dangerous condi- tions of his employment, is thereby guilty of contribu- tory negligence; 2d, that by continuing at his employ- 118 The New York Employers^ Liability Act. ment with knowledge and appreciation of the risk of danger therefrom, the employee impliedly contracts with the employer to assume all risk of injury there- from, and by reason of such implied contract cannot claim compensation for his injuries from his negligent employer for his breach of duty; 3d, that the employer owes no legal duty of care to an employee who con- tinues in the course of his employment, knowing that such a danger exists therein — a defense which is us- ually expressed in the maxim "volenti fit injuria." These three grounds of defense are usually interposed together, and while there is a logical difference between the defenses of contributory negligence, the maxim, and assumed risk, they are usually considered by the courts as practically one defense expressed in three diffrent forms, and the terms have been used loosely and al- most interchangeably. The difiference between the terms " assumed risks " and " contributory negligence " has been recently considered by the Court of Appeals, in Dowd V. N. Y., O. & W. R. Co., 170 N. Y. 459, and the distinction between them pointed out. No useful purpose would be served at this time in attempting to lay down what should be a true rule in the application of these three defenses, as the scope of this chapter is confined to a consideration of the legal effect of continuance in employment by an employee with knowledge of a defect negligently created by his employer. The courts in all jurisdictions are agreed that where an employee voluntarily consents to the con- tinuance of a defect and voluntarily agrees to take his chances of being injured thereby, he can have no just Continuing in Employment and Assumed Eisk. 119 claim for compensation against his employer for such an injury. The courts differ, however, in determining the effect of continuance in employment Avith full appreciation of the danger, upon the question, whether the employee actually did voluntarily agree to take his chances of being injured. In some jurisdictions con- tinuance with knowledge of an imminent danger, in- volving serious bodily injury, constitutes, as a matter of law, contributory negligence. (See Pittsburgh & W. B. R. Co. V. Esteneniard, 52 Ohio, 43; R^lsh v. Mo. Pao. R. Co,, 36 Kans. 129 ; Leanj v. B. & A. R. Co., 139 Mass. 580; Wheeler v. Berry, 95 Mich. 250; Reese v. Clark, 146 Pa. 465; Marean v. N. Y., S. & W. R. Co., 167 Pa. 220; Crutchfield v. Richmond D. R. Co., 76 N. C. 320; Illinois Paper Co. v. Albert, 49 111. App. 363; Highland Ave. & B. R. Co. v. Walters, 91 Ala. 442; Western & A. R. Co. V. Bishop, 50 Ga. 465.) In other jurisdictions, tontinuance with adequate knowledge of the possibility of the danger, is equivalent, as a matter of law, to the assumption of risk. (See McAulliffe v. Gall, 180 Mass. 361; Ladd v. Brockton St. Ry. Co., 180 Mass. 454; Dob- Uns V. Lang, 181 Mass. 397; Langley v. Wheelock, 181 Mass. 471 ; Kenney v. Hingham Cordage Co., 168 Mass. 278; Whelton v. West End Street Railway Co., 172 Mass. 555; Fuller v. N. Y., ISf. H. & H. R. Co., 175 Mass. 424; Le Moine v. Aldrich, 111 Mass. 89 ; Lampson v. Am. Axe & Tool Co., Ill Mass. 144; Kelley v. Calumet Woolen Co., Ill Mass. 128.) In Massachusetts, as will be seen by the cases just cited, both rules seem to be applied, and not much distinction seems to be made between contributory negligence and assumption of 120 The New Yobk Employers' Liability Act. risk, in the application of these terms to an employee who continues at work with knowledge of the possibili- ties of injury to which he has been exposed by his em- ployer's negligence {Sylvia v. Wampanoag Mills, 177 Mass. 194), a non-suit or directed verdict being ordered sometimes on an application of one theory and some- times on the other. (Barry v. N. Y. Biscuit Co., 177 Mass. 449.) The English courts, under the modem cases, follow neither of these rules. The continuance by the employee at his work with knowledge of the danger is a consideration which may or may not be con- clusive in determining whether he has voluntarily assumed the risk, and the rule as laid down by the Eng- lish cases will be considered at length in a subsequent section. Sec. 49. The New York rule on assumed risk. The employee in New York assumes not merely those risks necessary and incident to the business in which he is employed, but, ordinarily, assumes also such obvious risks as become known to him in the course of his employment if after such knowledge he continues in the same general place of employment.* " A servant when he enters into the relation assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection and al- ways assumes that this instinct, so deeply rooted in 6. UcQuigan v. D., L. d W. B, 15 ; Kaare v. Troy S. A I. Workt, Co., 122 N. Y. 618; Hart v. 13Q N. Y. 369; Oibaon v. Erie B. Vaumburg, 123 N. Y. 641 ; Arnold Go., 63 N. Y. 449. c. D. A H. Canal Co., 125 N. Y. New York Common Law " Assumed Eisk " Rule, 121 human nature, will guard him against all risks and dangers incident to the employment arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him." {Crown v. Orr, 140 N. Y. 450; Dowd v. N. Y., 0. & W. R. Co., 170 N. Y. 459.) The ordinary common law rule, moreover, in New York is that where the danger is so clearly apparent that the knowledge and appreciation of it by the em- ployee is also certain, there is no question for the jury as to whether the employee assumed the risk voluntarily or not. As the Court of Appeals says, in Kennedy v. Manhattan R. R. Co., 145 N. Y. 95, " We have carefully read over all the testimony in the case, and we have coma to the conclusion that the evidence showed, beyond any doubt, that the deceased was fully aware of the general condition of this yard at the time when he went on duty on the night in question. He had been there daily for more than three weeks, and had been a watchman at times and at times a car cleaner. He was necessarily familiar with the locality; with the fact that the yard was not complete ; with the fact that the carpenters were at work daily, and with the fact that the planking did not entirely cover the yard. Knowing these facts he must be held to have assumed the risk which accom- panied such a situation, and that he did know these facts we think there is no possible room for doubt. It 122 The New York Employees^ Liability Act. was not a question to be submitted to the jury." (See, also, Eaare v. Troy S. d I. Co., 139 N. Y. 369.)^ Where the circumstances of the employment are such that the condition of the place of employment is obvious, but the danger to life or limb involved in that condition is not obvious, or to determine which might require special skill or judgment not possessed by the ordinary employee to determine, the situation would be different and the assumption of the risk by the servant is then a question of fact for the jury. This is also true where the servant has been too short a time in the employment from which the injury occurred to have had opportunity to acquaint himself with the risk to which he is exposed. The knowledge by the servant, which constitutes an assumption of risk on his part, is not merely of what appears to him to be the situation or condition of hia place of employment, but of the possibility of danger and the consequences which might result from it. The leading case on this doctrine is Davidson v. Cornell, 132 N. Y. 228, a case in which the injuries resulted from the fall of some girders insuflSciently held together. The court there said that the defect in the structure was 7. Appel V. Buffalo, etc., R. (reversing an order setting aside W. Co., Ill N. Y. 550 (in which a nonsuit) ; also, Wright v. N. Y. a refusal to nonsuit where risk 0. R. R. Co., 25 N. Y. 666 j was obvious was held error ) ; Poioera v. N. Y. de L. E. R. Co., DeForrest v. Jewett, 88 N. Y. 98 N. Y. 274; Marsh v. Chioker- 264; Gibson v. Erie R. R. Co., C3 ing, 101 N. Y. 396; Sweeney v. N. Y. 449; Arnold v. D. & H. Berlin £ Jones Envelope Co., 101 Canal Co., 125 N. Y. 15 (in which N. Y. 520; Shaw v. Sheldon, 103 a nonsuit was affirmed); Wil- N. Y. 667; Hiolcey v. Taafe, 105 Hams V. D., L. d W. R. R. Co., N. Y. 20; Buckley v. O. d P. 116 N. Y. 628 (in which a refusal Manufacturing Co., 113 N. Y. to nonsuit was held error); 540; Mull v. Curtice Bros. Co., Knisley v. Pratt, 148 N. Y. 372 74 App. Div. 561, 77 Supp. 813. Risk must be Understood. 123 apparent. The court held, however, that "where it may require skill and judgment not possessed by ordi- nary observers or by the servant to give knowledge of hazards Avhich may be apprehended therefrom, he does not assume those hazards." ( See, also, Kain v. Smith, 89 N. Y. 375; Smith v. King, 74 App. Div. 1; Allison v. Long Clove Flat Rock Co., 75 App. Div. 267; Sullivan 17. Thorndike Co., 175 Mass. 41 ; Flint v. Kelly, 180 Mass. 181.) The New York rule, as stated in these cases, is the same as that laid down in the leading English cases of Clarke v. Holmes, 7 H. and N. Exchequer Eep. 937; Thomas v. Quartermaine, 18 Q. B. D. 685. As Bylbs, J., says, in Clarke v. Holmes, supra, " a servant know- ing the facts may be utterly ignorant of the risks," and as Lord Eshek says, in Thomas v. Quartermaine, " mere knowledge may not be a conclusive defense. There may be a perception of the existence of the danger without Comprehension of the risk, as where the workman is of iinperfect intelligence, and although he knows the danger remains imperfectly informed of its nature or fextent." The statement contained in the quotation given above, from Crown v. Orr, 140 N. Y. 450, in which the absence of objection or complaint by the employee is suggested as one of the grounds for denying the relief, and for assuming that the employee has consented to ■the risk, is misleading. Such a complaint or objection avails nothing to the servant Avho continues at work with knowledge of the danger, and the courts both in Massachusetts and New York hold that it is no value to the employee to prove actual complaint made by him or 124 The New Yoek Employers' Liabiuty Act. objection to the continuance of the danger involved in his master's negligence.* Sec. 50. Promise to repair as affecting assumption of risk. There has been until recently much confusion among the New York cases as to the effect of an express promise made by or on behalf of the employer to repair a negligent defect complained of by the employee. The general rule which has been recognized for years in most jurisdictions is, that where the master has ex- pressly promised to repair the defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reason- able to allow for its performance, and, as we think, for injuries suffered within any period which would not preclude all reasonable expectation that the promise might be kept.* The quotation just cited finds support in one of the older leading New York cases, Laning v. N. Y. Gen. By. Co., 49 N. Y. 521, which held that a promise to discharge a drunken, incompetent employee, if he did not do better, was sufQcient to make a question of fact for the jury in an action brought by an employee injured from 8. hamson v. American Axe & effect are Sweeney v. Berlin A Tool Co., 177 Mass. 144; Carri- Jones Envelope Co., 101 N. Y. gan v. Washburn cE Moen Manu- 520; Gibson v. Erie R. Co., 03 facturing Co. 170 Mass. 79, 81; N. Y. 409; Bannigan v. Smith, Louis V. N. Y. d N. E. R. Co., 28 App. Div. 176, 50 Supp. 845. 153 Mass. 73; Leary v. B. . Railroad Co., 100 R. R. Co., 139 Mass. 580-587; U. S. 225. (The quotation above Baley v. Case, 142 Mass. 316, is cited by the court from Sher- 322 ; Westcott v. N. Y. £ N. E. man & Redfield on Negligence, sec. R. Co., 153 Mass. 460. 96, 3d ed.; see. 372, 5th ed.) New York cases to the same Smft i Co. v. O'Neil, 187 111. Promise to Repair and Assumed Risk Rule. 125 the negligence of such intoxicated employee. The court says: " But in this case the question whether the plaintiff was so negligent as to be contributory to the injury which he received was a question for the jury, for Lan- ing had testified that Colby had said to him that i^ Westman did not do better he would have to discharge him. " It has been held that there is a formal distinction between the case of a servant who knowingly enters into a contract to work on defective machinery, and that of one who, on a temporary defect arising, is in- duced by the master after the defect has been brought to the knowledge of the latter, to continue to perform his services under promise that the defect should be remedied. (See Holmes v. Clai-l; 10 Wend. 405.) Knowledge in such a case is not of itself, in point of law, necessary to the action." To the same effect is Healy v. Ryan, 25 Wk. Dig. 23, affirmed, without opinion, 116 N. Y. 657; Stevens v. Hudson Valley Knitting Co., 69 Hun, 375. A series of decisions contrary to this rule, based mainly upon a somewhat anomalous and entirely illogi- 337; Illinois Steel Co. v. Mann, 154 U. S. 190; Kane v. Northern 170 III. 200; Ferries v. Berlin Cent. li. R. Co., 128 U. S. 01; Machine Works, 90 Wis. 541; also, Cooley on Torts, 2d cd., Snouberg v. Wellson Paper Co., 5.in-500; Slieiman & Redficid on 43 Minn. 532; Tyberg v. N. I'ao. Negligence, 5th ed., 372; Bailey's li. It. Co., 39 Minn. 15; Manu- "Master's Liability to Servant," facturing Co. v. Morrisscy, 40 207; see, also, tlie exhaustive Ohio, 148; Patterson v. Pittsburg, rote collating the cases appended etc., li. li. Co., 70 Penn. St. 380; to Illinois Steel Co. v. Mann, 170 Counsel v. Hall, 145 Mass. 408; 111. 200, in 40 L. E. A. 781. Jior. Pac. R. li. Co. v. Babcock, 126 The New Yoek Employees' Liability Act. cal decision, Marsh v. ChickeHng, 101 N. Y. 400, have been decided in the Appellate Division. (See McCarthy V. Washburn, 42 App. Div. 252, 58 Supp. 1125; Mull v. Curtice Bros. Co., 74 App. Div. 561, 77 Supp. 813 ; Han- nigan v. Smith, 28 App. Div. 176, 50 Supp. 845; Oban- hein v. Arbuclde, 80 App. Div. 465 ; Spencer v. Worthing- ton, 44 App. Div. 496, 60 Supp. 873; Rice v. Eureka Paper Co., 70 App. Div. 339, 75 Supp. 49.) The authority, however, of these cases, largely, if not entirely, has been taken aAvay by a reversal of the last cited case by the Court of Appeals {Rice v. Eureka Paper Co., 174 N. Y. 385), which attempts to distin- guish the cases last cited. The Court of Appeals holds that where a promise had been made by the master at the close of the week to repair a defective machine in the early part of the next week, that such a promise is one to repair not at once, but Avithin a reasonable time, and a servant who has accepted employment on this machine with knowledge of its condition, but who has protested against its defects and has threatened to leave unless they are remedied, and who, by reason of this promise, is induced to continue in his employment, is justified in remaining at his work during such time, and where he is injured on the Wednesday of the following week the risk of the employment, which prior to the promise had been accepted by the servant, became, by reason of the promise, the risk of the master and the latter is liable. The court considers at some length a distinction which seems to have been noticed in a fexy cases between a general promise to repair and a promise to repair at a definite future time. The court below had held that under a promise to take effect in the Promise to Eepaie and Assumed Risk Rule. 127 future, the risk remained that of the servant until the time for the fulfillment of the promise and for a rea- sonable time thereafter. The court does not take a definite position in regard to this distinction, but leaves it open for future decision, saying: " At this point the question arises, however, whether the rule should be adopted without qualification, or as limited by some of the courts, and particularly by the Appellate Division, from whose order this appeal is taken. Since, under our construction of the master's promise herein, it may fairly be said to fall within the general rule without qualification; and in view of the fact that under the so-called Employers' Liability Act (ch. 600, L. of 1902) now in force, the rule above re- ferred to may in the future present a question of purely academic interest, we do not now decide the general question whether it would be wiser to adopt the rule in its entirety or as modified by the limitation referred to." The general effect of a promise to repair is to make a question of fact for the jury whether the employee by continuing at work was guilty of contributory negli- gence.10 if the risk of injury from the defect itself was so great that no one but a reckless man would have continued at work, the defendant is nevertheless entitled to a verdict." 10. Sohlitz V. Pahst Brewing 11. Kane v. Tforthern Gent JRy. Co., 57 Minn. 303; Hough v. Co., 128 U. S. 91; I^f-^^\^- Railroad Co., 100 U. S. 213; Ry. Co. v. Watson i^* I"d- 2;. Smith V. E. W. Backus Lumber Clarice v. Holmes, 7 H. & N-O"' Co., 64 Minn. 447; Rice v. Eureka BromfieU v. Hughes. 128 Penn. Paper Co., 174 N. Y. 385. 194; District of ColumUa v. Mo- '^ Elligott, 117 U. S. 621. 128 The New Yobk Employers' Liability Act. Sec. 51. Assurance of safety and assumption of risk. "Where a servant is apprehensive of the possible danger concerning which, however, his mind is in doubt, and malies inquiry of his master and is assured that the condition concerning which he is apprehensive is safe, the continuance then in employment will not constitute an assumption of risk as a matter of law. An application of this rule can be made, however, only where the condition concerning which the inquiry is made is one of which an employee has imperfect knowl- edge, and which is not obviously dangerous.'* An employee cannot rely on his master's peremptory order or his express or implied assurance of safety when the danger itself is apparent to the employee and the master can have no superior knowledge. *' 12. Siedentop v. Buse, 21 App. C39; Baas v. Balch, 12 U. S. App. Div. 592, 47 Supp. 809; Daly 534 (6 C. C. A. 201); Bradbury V. Behalf, 28 Hun, 314; Eicholz v. Goodwin, 108 Ind. 280. V. Niagara Falls Hydraulic P. 13. See Perschke v. Benoken, it Mfg. Co., 68 App. Div. 441, 44 Supp. 265; Marsh v. Chicker- 73 Supp. 842; Chadwick v. ing, 101 N. Y. 390; also, Batcley Brewster, 15 Supp. 598; Floettl v. Northern Cent. Ry. Co., 82 V. Third Ave. Ry. Co., 10 N. Y. 370; O'Connell v. Clark, 22 App. Div. 308, 41 Supp. 792; App. Div. 466, 48 Supp. 74; Tremblay v. Mapes Reeve Con- Bowery v. Lake Shore, etc., siruction Co., 169 Mass. 284; Ry. Co., 13 Misc. 641; 8 Supp. Dean v. Smith, 109 Mass. 569; 1089; Tanner v. N. Y., etc., McKee >. Tourtellotte, 107 Mass. R. R. Co., 180 Mass. 672; 69; O'Brien v. Vute Ballett Co., Meunier v. Chemical Paper Co., 177 Mass. 422; Denning v. Gould, 180 Mass. 109; Sullivan v. Sim- 157 Mass. 563; flalfenstein v. plex Electric Co., 178 Mass. 35; Medart, 130 Mo. 575; Chicago McClusky v. Garfield d Proctor Edison Go. v. Hudson, 06 111. App. Coal Co., 180 Mass. 115. Burden op Proof as to Assumed Risk. 129 Sec. 52. Assumption of risk ; burden of proof. A very important question relating to the doctrine of assumed risk is whether the burden is upon plaintiff of showing that he had not assumed the risk of injury, or upon the defendant to show that plaintiff had done so. This question has been considered by the Court of Appeals in a very important and recent case {Dowd v. N. Y., Ont. & Western Ry. Co., 170 N. Y. 459), which holds that the burden of proof is upon the defendant to show that the plaintiff had assumed the risk of injury. This was an action brought by an administrator whose in- testate had been killed by a negligent practice of de- fendants in "kicking" cars. The intestate had been at work for defendant about six weeks before his death. There was no evidence showing that the decedent was ever in such a position as necessarily to have seen cars kicked on the track where repairers were at work. The court says : " If the burden of proof was on the plaintiff to show affirmatively the absence of knowledge on the part of her intestate, it may be that the evidence was insufficient for the purpose. If, however, the burden of proof in this regard is upon the defendant the finding of the jury should be sustained because the evidence did not con- clusively establish the fact in accordance with this theory. . . . Whether the fact that a known or obvious risk is proved by one party or the other is im- material, provided it is proved at all, but the question now before us is upon whom rests the burden of proof in this respect. If the plaintiff knows the danger, un- der ordinary circumstances he waives it, but is the waiver a defense to be alleged and proved by the de- 9 130 The New Yoek Employees' Liability Act. fendant, or only the fact of contributory negligence, the absence of which is a part of plaintiff's case? " The court holds, after considering the logical differ- ence between contributory negligence and assumed risk, and defining those terms, that " the burden of showing that a servant assumed the risk of obvious danger rests upon the master and hence we cannot say, as a matter of law, that the jury, in the case before us, was com- pelled to find that the plaintiff's intestate knew or should have known of the practice of " kicking " cars on the track where car repairers were at work. If he did not know of the practice he did not waive the danger." This case is the first authoritative decision in New York on this important point. Subsajuent decisions have intimated, though not definitely decided, that the defence of assumed risk must now be pleaded specially, and is not available under the usual general denial and plea of contributory negligence. In Scheir v. Quirin, 77 App. Div. 624, the Appellate Division, Fourth De- partment, uses the following language: " The answer itself does not set forth the defence of assumption of risk by Scheir. {Dowd v. Ry. Co., 170 N. Y. 459. ) The facts, however, all came out upon the trial without any objection, and the question of a defect in the answer was not raised. Had it been, an oppor- tunity would probably have been given to amend the answer upon such terms as would have been proper. We think it is too late upon this appeal to raise this objection. {KilJcin v. N. Y. Cen., etc.. By. Co., 76 App. Div. 529.) The employee not only assumes as a matter of law Violations OF Statute Assumed. 131 the defects which he actually knows, but he also as- sumes the risk of injury from defects which he ought to have known or could have known by the use of rea- sonable care.** Sec. 53. New York rule on " statutory risks." The employee in New York, with an exception which is considered in the next section, assumes not merely those risks mentioned above and created by his master's ordinary negligence, but by continuance in the employ- ment he assumes the risk of injury from a violation by the employer of any statute which may be passed to provide greater safety for the employee in the course of his employment. (See Enisleij v. Pratt, 148 N. Y. 372 ; DeYoung v. Irving, 5 App. Div. 449, 38 Supp. 1089 ; E. 8. Higgins Carpet Co. v. O'Keefe, 79 Fed. Rep. 810; White V. Witteman Lithographic Co., 131 N. Y. 031; Graves v. Brewer, 4 App. Div. 327, 38 Supp. 506.) In the leading case on this subject, Knisley v. Pratt, 148 N. Y. 372, the employee, a young woman, was injured because of the failure of the defendant to comply with the mandatory provisions of the Labor Law (ch. 15 of L. of 1897, sec. 81) requiring cog-wheels to be guarded. The Court of Appeals held that by continuing in the employment with knowledge of the failure of her employer to comply with the statute she waived all right to claim compensation for injuries resulting therefrom, and that she was properly non-suited by the trial court. The court says : 14. Williams v. D., L. d W. 650; Qihson v. Erie Ry. Co., 63 By. Co., 116 N. Y. 626; Appel v. N. Y. 449 j Powers v. Same, 98 B. <£ N. Y. P. B. Co., Ill N. Y. N. Y. 274. 132 The New York Employees^ Liability Act. " In order to sustain the judgment in favor of the plaintiff it is necessary to hold that where the statute imposes a duty upon the employer, performance of which will afford greater protection to the employee, it is not possible for the latter to waive the protection of the statute under the common law doctrine of obvious risks. We regard this as a new and startling doctrine calculated to establish a measure of liability unknown to the common law and which is contrary to the deci- sions of Massachusetts and England under similar statutes." The question of public policy involved received very little consideration from the court. Notwithstanding the statement of the court quoted above, the doctrine that public policy will not permit an employer to escape his statutory obligation to provide for the safety of his employees under any such theory of assumed risks is neither new nor startling nor contrary to the English decisions. Knisley v. Pratt, supra, is itself contrary to the English doctrine and to the rule laid down in many jurisdictions in the United States, and has been criticised and not followed in other courts.'" 15. Narramore v. C. C. C. d Co. v. Gilbert, 107 111. 354; Bt. L. Ry. Co., 96 Fed. Rep. 298; Bluedorn v. Mo. Pac. B. R. Co., Oreenlee v. Southern Ry. Co., 30 108 Mo. 439; also, Litchfield Southeastern Rep. (N. C.) 115; Coal Co. v. Taylor, 81 111. 590; also, Boyd v. Brazil Block Coal Wesley Coal Co. v. Taylor, 84 Co., 50 N. E. Rep. 368 (Ind.); 111. 126. The Narramore case, Durant v. Mining Co., 97 Mo. supra, considers and disapproves 62; Distr., etc., R. R. Co. v. of the New York decision of Moore, 152 Ind. 350; East Bt. Knisley v. Pratt; see, also, Lout* Ry. Co. V. Eggman, 170 Bimpson v. N. Y. Rubber Co., 80 111. 538; III. Cent. R. R. Hun, 415. Violations of Statute — English Rule. 133 In England the case of Baddesley v. Lord Granville, 9 Q. B. D. 435, lays down a rule precisely contrary to the doctrine of Knisley v. Pratt. The action was brought for the death of a miner, caused by a violation of the Coal Mines Regulation Act, which requires that a banksman be kept at the mouth of coal pits while miners are going up and down the shaft. The court held that the fact that the deceased knew that no banksman was employed by defendant and yet continued at work at the mine did not constitute a defense. Says Baron Wills: " There should be no encouragement given to the mak- ing of an agreement between A and B ; that B shall be at liberty to break the law which has been passed for the protection of A. If the supposed agreement be- tween the deceased and the defendant, in consequence of which the principle of 'volenti non fit injuria' is sought to be applied, comes to this, that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed upon him by statute, and shall connive at his disregard of the statutory obligation imposed upon him for the benefit of others as well as himself" . . . "such an agreement would be in violation of public policy and ought not to be listened to." Sec. 54. Statutory risks ; assumption by minors. A recent case, establishing a new principle as to the liability of employers to minor employees, has been de- cided by the Court of Appeals in Marino v. Lehmaier, 173 N. Y. 530. It creates an important modification of the Knisley v. Pratt doctrine commented upon in the last section. In this case an infant of thirteen years 134 The New York Employees' Liability Act. was injured while working for defendant as a feeder of a printing press, which he was required to clean every night. While engaged in cleaning the press his fingera were caught between the cog-wheels and cut off. The machine was not in motion at the time he commenced to clean it, and the court finds that the evidence is not clear as to the precise manner in which the machine waa started. On receiving the injury the boy fainted and was unable to state whether or not he had previously taken hold of the fly wheel and in so doing started the motion of the machine. There is apparently no evidence to show that the machine itself was a defective one or as to the precise way in which the accident happened. The Labor Law, however (L. of 1897, ch. 415, sec. 70), provides : " A child under the age of fourteen years shall not be employed in any factory in this State. A child between the ages of fourteen and sixteen years shall not be so employed unless a certificate executed by the health officer be filed in the office of the employer." As this law prohibited defendant from employing a child of this age, the court held that the employment is in and of itself evidence of negligence sufficient to send the case to the jury on the ground that the case was one in which the accident could not have happened but for the employment. The court further held that a child under the age specified by the statute — fourteen years — does not possess the judgment, discretion, care and caution necessary for engagement in such a dangerous avocation, and, therefore, is not, as a matter of law, chargeable either with contributory negligence or with having assumed the risks of the employment. Two opinions are written in this case, one by Judge Haight Minors and the Assumed Risk Rule. 135 and the other by Judge Parker, which agree in effect. Judge Haight says : " It has been said of the last century that it was the age of invention. Machines had been devised and con- structed with which very many of the articles used by mankind were manufactured. Numerous factories had been established throughout the country filled with ma- chines, many of which were easily operated, and the practice of employing boys and girls in their operation had become extensive, with the result that injuries were of frequent occurrence. We think it is very evident that these reasons induced the Legislature to establish definitely the age limit under which children should not be employed in factories, and, to our minds, the statute in effect declares that a child under the age specified presumably does not possess the judgment, discretion, care and caution necessary for the engagement in such a dangerous avocation, and is, therefore, not, as a matter of law, chargeable with contributory negligence or iiAth having assumed the risks of the employment in such occupation." He concludes that under the evidence a question of fact was presented for the jury; that the violation of the statute by defendant was evidence of negligence, and that if the jury found that the plaintiff was not charge- able with contributory negligence, the defendant was certainly liable, as well as liable for the penalty pro- vided by the statute. There is apparently no evidence on the question of the absence of contributory negli- gence by this little child, but this point receives no con- sideration by the court in the prevailing opinions. 136 The New York Employees^ Liability Act. There are two dissenting opinions, Judge O'Beien being of the opinion that the employment itself cannot be considered the proximate cause of the injury without further proof, and that a violation by the defendant of the Labor Law, while it may have subjected him to the penal consequences prescribed, did not prove, or tend to prove, that he thereby incurred a liability to the plain- tiff on the ground of negligence. Judge Gray concurs with Judge O'Brien on the ground mentioned by Judge O'Brien and dissents from the prevailing opinions on the further ground that there was no aflSrmative act of negligence chargeable to the defendant, and that plain- tiff had not shown that the injury was the direct or necessary result of the violation of the law. The effect of this decision is that hereafter in cases involving violation of the Factory Act in the forbidden employment of minor children, the question of assump- tion of risk by the injured child and of contributory negligence on its part is to go to the jury. The Court of Appeals has not yet taken the position of the English courts as to the requirements of public policy in casea involving the violation by an employer of a remedial statute passed for the greater protection of his employees It is, however, a step in that direction, and will mar terially assist practical enforcement of these provisions of the Labor Law. Sec. 55. The assumed risk rule in England. A somewhat extended examination of the common law rule on the subject of assumed risk in England is advisable owing to the fact that the New York Em- ployers' Liability Act has by statute engrafted upon Assumed Eisk Docteine in England. 137 the law of that State the common law rule on assumed risk as applied by English courts. As will be seen by an examination of the English cases, the question whether the employee has agreed to take his chances of being injured by a defect which exists by his employer's negligence, is a question of fact to be determined by the jury upon the consideration of all the circumstances in the case. The character of the defect or negligence, the actions of the parties, the fact that the employee has complained or has failed to complain of the defect, the wages paid to the employee in comparison with wages ordinarily received by em- ployees in the same general kind of Avork where such unnecessary dangers do not exist, the nature of the danger itself, are all elements to be considered. Ade- quate knowledge by the employee of the danger inherent in a defective condition standing alone is not in itself, under all circumstances, a complete defense even if the employee continues thereafter at his work in the same general course of employment. There may, un- doubtedly, be cases in which knowledge of the danger, coupled with continuance in the employment, is suffi- cient to show the voluntary encountering of the risk. This, however, is not true in all cases, and the ordinary rule as laid down by the English courts is that mere knowledge by the workman of the risk involved is not sufficient to deprive him of the right to recover. There must be a thorough comprehension on his part of the danger and a voluntary undertaking by him of that risk and danger. {Brooke v. Ramsden, 63 L. T. & S. 287, 55 J. P. 262. ) There must be an assent on the part of the workman to accept the risk with a full appreciation 138 The New York Employees' Liability Act. of its extent, to bring him within the maxim. Plain- tiff is entitled to recover unless the circumstances are Buch as to warrant the jury in coming to the conclusion that the plaintiff freely, voluntarily, and with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.*® The evolution of the English law on assumed risks and upon the effect of continuance in employment may perhaps best be understood by a consideration of the three leading English cases on the subject Sec. 56. Same; Thomas v. Quartermaine. In Thomas v. Quartermaine, 18 Q. B. D. 685, the plaintiff, a brewery worker, sued to recover damages under the Liability Act of 1880 for injuries received from a fall into a cooling vat used by defendants in their brewery, the claim being that the vat should have been fenced, and that the injuries were occasioned by the absence of fencing. It appeared that a boiling vat and a cooling vat were placed in the same room in the brewery; a passage, which was in one part only three feet wide, ran between these two vats, the rim of the cooling vat rising sixteen inches above the passage. The plaintiff, who was employed in this room, went along the passage in order to get from under the boiling vat a board which was used as a lid. As this lid stuck, plaintiff gave an extra pull and it came away suddenly, and the plaintiff, falling back into the cooling vat, was 16. Amos V. Duffy, 71 L. E. Battery & Metal Co., 2 Q. B. D. 21; Oshorne v. London dc South- 338; Yarmouth v. France, L. R., ioestem Ry. Co., 21 Q. B. D. 221; 19 Q. B. D. 647, 657; Thomas v. Thrussell v. Handyside, 20 Q. B. Quartermaine, 18 Q. B. D. 685. D. 359; Williams v. Birmingham Thomas v. Quautkemaine. 139 severely scalded. There was no statute shown requir- ing any fencing upon such vats. Plaintiff had been employed for a long time at this place and was thor- oughly familiar with the situation. On the trial before the County Court the judge held that there was evidence of a defect in the condition of the works at defendants' brewery, there being no sufficient fence to the cooling vat. He found that the condition of the vat was known to both plaintiff and defendant; that the plaintiff had not been guilty of contributory negligence, and he gave judgment for the plaintiff. The divisional court set aside this judgment and directed a judgment for the defendants, and the plaintiff appealed to the Court of Appeal. It was held by the Court of Appeal that there was no evidence of negligence arising from a breach of duty on the part of the defendant towards plaintiff, and owing to the fact that plaintiff had as- Bumed the risk that he was not entitled to recover. The appeal was accordingly dismissed and no new trial ordered. A portion of the court's attention was oc- cupied with the consideration of the effect of the Eng- lish statute of 1880 upon the defense of " volenti non fit injuria," which need not be considered at this point. The court disapproved of the ruling in Weblin v. Bal- lard, 17 Q. B. D. 122, which held that the defense of assumed risk had been taken away by the statute. The leading opinion is by Bowen^ L. J., who, upon the ques- tion of the effect of continuance in employment upon the assumption of risk, says : " In the absence of any further act of omission or commission by the occupier of the premises or his servants, or in disregard of statutory provisions or of individual rights, it can not 140 The New Yoek Employers' Liability Act. properly be said that there has been upon his part any breach of duty towards the person who, knowing and appreciating the danger and risks, elects voluntarily to encounter them. I employ a builder to mend the broken slates upon my roof, and he tumbles off. Have I been guilty of any negligence or breach of duty towards him? Was I bound to erect a parapet around my roof before I had my slate mended? In the case now before us, the negligence relied on by the plaintiff is that a vat in the room in which he worked was left without railing. Let us suppose that the defendant, impressed with the danger, had actually sent for a builder to put one up, and the builder had fallen in while executing the work. Would the defendant have been guilty of a breach of duty towards the builder? The duty of an occupier of premises, which have an ele- ment of danger upon them, reaches its vanishing point in the case of those who are cognizant of the danger and voluntarily run the risk. . . . Where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciat- ing both risk and danger, voluntarily encounters them, there is in the absence of further acts of omission or commission no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defense in itself, hut when it is a knowledge under circumstances that leave no inference open hut one, vis. : that the risk has heen voluntarily encountered, the defense seems to me complete." After commenting upon the confusion of the English law, between contributory negligence Thomas v. Quaeteemaine. 141 and assumed risk as defenses, the court says: "The Employers' Liability Act of 1880 makes precision on this point necessary and renders it important to re- member, quite apart from the relation of master and servant, and independent altogether of it, one man cannot sue another in respect to a danger or a risk not unlawful in itself that was visibly apparent and volun- tarily encountered by the injured person. The county judge, in the case now under appeal, while negativing contributory negligence, has found the issue of knowl- edge against the plaintiff. In what sense must this finding be read, having regard to the undisputed facts? Knowledge, as we have seen, is not conclusive where it is not consistent with the facts that from its imperfect character or otherwise the entire risk, though in one sense known, was not voluntarily encountered, but here, on the plain facts of the case, knowledge on the plain- tiff's part can mean only one thing. For many months, the plaintiff, a man of full intelligence, had seen this vat, known all about it, appreciated its danger — elected to continue working near it. It seems to me that legal language has no meaning unless it were held that knowl- edge such as this amounts to voluntary encounter of the risk." The language used by Bowen^ L. J., resembles very closely the language used in those courts in this country which hold that continuance in employment with knowledge of a defect or danger constitute an assumption of risk. It is to be observed, moreover, that the question of assumption of risk is passed upon by the court as though it were a question of law, and no new trial was ordered by the Court of Appeal. The facts in Thomas v. Quartermaine are somewhat meagre. Sub- 142 The New York Employees' Liability Act. sequent opinions in other cases have not followed the decision of Judge Bowen, and, while the case has never been distinctly overruled, it has been distinguished and not followed on this point now under consideration. One of the cases in which Thomas v. Quartermaine has been considered and its application been restricted, occurred in the following year; that case is Yarmouth V. France, decided in the Queen's Bench in 1887 (see 19 Q. B. D. 647). Sec. 57. Same; Yarmouth v. France. In this case the plaintiff was in the employ of the defendant, who was a warehouseman in London, to un- load and deliver goods. In his work he drove a horse belonging to the defendant, who was put under plain- tiff's control by defendant's stable foreman. The plaintiff found that the horse was vicious and alto- gether dangerous and unfit to be driven, and he re-, peatedly complained of it to the stable foreman, who had the general management and control of the de- fendant's horses, telling him that he objected to driving so unsafe an animal. The foreman's answer was " Go on ; you must keep driving," adding, " If you meet with an accident we shall have to stand responsibility for that." Some three months after plaintiff began to drive the horse, the horse kicked him and broke one of his legs. The county judge held that plaintiff was a " workman " and that a kicking horse was a " defect " in defendant's plant within the meaning of the act, but he further held, on the authority of Thomas v. Quarter- maine, that the plaintiff continued to drive the horse after he had become aware of its vicious nature, and Yarmouth v. France. 143 that he must, therefore, be considered to have assented to take upon himself the attending risk, and he accord- ingly gave judgment for the defendant. On appeal be- fore the divisional court this judgment was reversed. The leading opinion in the case was written by Lord ESHER, who sat in Thomas v. Quartermaine and wrote a dissenting opinion to the judgment of the court in that case. After reciting the facts given above, he says: " The judge of the City of London Court did that which, I believe, many county court judges have done since the decision of the Court of Appeal in Thomas v. Quar- termaine. The moment it was proved before him that the plaintiff knew the horse to be vicious but continued to drive him, the judge said it was useless to enquire further, for that alone disentitled him to recover, upon an application of what is called the maxim of ' volenti non fit injuria.' " . . . " We are called upon now to say whether that is the true effect of the decision." . . . " Does the maxim of ' volenti non fit injuria ' go to this length that the mere fact of the workman, knowing that a thing is dangerous and yet using it, is conclusive to show that he voluntarily incurs the risk? The answer to that question, so far as this court is con- cerned, depends upon whether Thomas v. Quartermaine has so decided. Taking the whole of that judgment together, it seems to me to amount to this: that mere knowledge of danger will not do; there must be an assent on the part of the workman to accept the risk with a full appreciation of its extent to bring a work- man within the maxim of ' volenti non fit injuria.' If so, that is a question of fact. Here the judge of the 144 The New Yoek Employees^ Liability Act. court below has come to the conclusion that the mo- ment it appeared that the plaintiff knew and appre- ciated the danger and did not at once quit the defend- ant's employ he came within the maxim, and was, there- fore, in the authority of Thomas v. Quartermaine, dis- entitled to recover. He did not bring his mind to bear upon the motive which induced the plaintiff to act as he did — whether he relied upon the foreman's statement that the employer would be responsible in case of acci- dent or whether he was influenced by fear of being thrown out of employment if he failed to perform the foreman's orders. All that was for the jury." In this judgment Lindley^ L. J., concurred. This judgment certainly does not follow that of Thomas v. Qttartermaine and limits the application of the rule laid down by Bowen^ L. J., in that case most materially. This is made quite clear in the dissenting opinion of Lopes, C. J. (Citing Woodley v. Metropoli- tan District Ry. Co., 2 Exch. Div. 384 ; Oriffiths v. Lon- don & St. Katharine Docks Co., 13 Q. B. D. 260. ) The decision in Yarmouth v. France, however, as has been observed, was by the divisional court, subordinate to and bound by the decision of the Court of Appeal in Thomas v. Quartermaine. The question, however, which is considered in the Yarmouth case receives later further attention from the House of Lords on an appeal from the Court of Appeal, and its reasoning is sustained by the " law lords " in the case of Smith v. Baker, A. C. (1891), p. 325. The Doctrine of Smith v. Bakkb. 145 Sec. 58. The rule in Smith v. Baker. This is the most important case in English law on the doctrine of assumed risk, and its facts and the rul- ings made upon them require careful consideration. The plaintiff had been employed by the defendants, who were railway contractors, for some months prior to the day on which he received his injuries. The duties as- signed him when he first entered their employment was to fill carts with stones which were lifted by a steam crane in order to be put in the wagons; he was next engaged in slinging stones on to the crane, and, about two months before the accident, he was set to work with hammer and drill with two other servants of the re- spondents, he holding the drill while they used the hammer. On the day of the accident he was sent, with two others, to drill a hole in the rock in a cutting through which a railway track was to be laid. While they were thus employed, stones were being lifted from the cutting, which was seventeen or eighteen feet deep ; the crane was resting on the top of the cutting, near the edge. When slinging a stone, a chain was put around it and a hook hitched into one of the links ; to this chain the chain from the crane was fastened ; when the stones were clear of the bank the arm of the crane was jibbed in one direction or another, according to the position of the wagon into which the stone had to be put; if it was jibbed in one direction it passed over the place where the plaintiff was at work. It would appear that this method of work had existed from the commence^ ment of plaintiff's employment at this work. Whilst he was working the drill a stone in the crane, on being lifted, fell upon him and caused serious injuries. No 10 14:6 The New York Employees^ Liability Act. warning was given that the stone was to be jibbed in that direction. Plaintiff stated in his evidence that the men were "jibbing" over his head; that whenever he saw them he got out of the way, but at the time the stone fell upon him he was working the drill and so did not see the stone above. One of his fellow workmen had in plaintiff's hearing previously complained to the "ganger" or foreman of the work of the danger of slinging stones over their heads, and plaintiff himself had told the crane driver that it was not safe. On cross- examination the plaintiff stated that he was a " navvy " or railway laborer, and accustomed to this particular work for six or seven years; he had been long enough at it to know that the labor was dangerous; he had been at the same class of work in the same cutting when they were jibbing overhead every day, and had been doing that steadily for four or five months. Sometimes he could see the stones being craned up above him, and when he saw them he got out of the way. At the close of plaintiff's case, defendant's counsel submitted that the case must be non-suited on plaintiff's own admission as to his knowledge of the risk. (Citing Thomas «?. Quartermaine, 18 Q. B. D. 685.) The court refused to non-suit. The only witness called for the defendants was the superintendent of the work, under whose order plaintiff was employed on the day of the accident. He stated that they had put a sling chain on to the stone in the ordinary way, and no explanation was made or suggestion given as to what was the cause of the dis- aster. He said that the rule of the works was that all the employees should look out for themselves; that it was part of plaintiff's employment to look out; the men Smith v. Bakeb. 147 ought to have stopped work while the stone was being jibbed around, and that he told the men to get out of the way. The special questions sent to the jury in the case and their answers were these: " Q. 1. Was the ma- chinery for lifting the stone from the cutting, taken aa a whole, reasonably fit for the purpose for which it was applied? A. No. Q. 2. Was the omission to supply special means of warning when the stones were being jibbed a defect in the ways, works, machinery and plant? A. Yes. Q. 3. If so, were the employers, or fiome person engaged by them, to look after the condi- tion of the works, etc., guilty of negligence in not remedying that defect? A. Yes. Q. 4. Was the plain- tiff guilty of contributory negligence? A. No. Q. 5. Did the plaintiff voluntarily undertake a risky employ- ment with the knowledge of its risk? A. No. Q. 6. Amount of damages, if any? A. One hundred pounds." Application was made on behalf of defendants to have judgment entered for them, notwithstanding the find- ings of the jury, on the ground that the case should not have been allowed to go to them, plaintiff having ad- mitted that he knew of the risk and voluntarily incurred it. The trial judge having refused to set aside the ver- dict, the case went upon appeal, the notice of appeal simply specifying as error that the judgment was bad in law on the ground that the plaintiff knew of the risk and had voluntarily assumed it. The Court of Queen's Bench dismissed the appeal, but allowed an appeal to the Court of Appeal, which reversed the judgment of the court below, mainly, or, perhaps, exclusively, on the ground that there was no evidence of negligence on the part of the defendant, although Chief Justice 148 The New Yoek Employers' Liability Act. Coleridge expressed an opinion that the judgment of the County Court judge ought to be set aside on another ground also, namely, that the plaintiff had engaged to perform a dangerous operation and took the risk of the operation he was called upon to perform. From the Court of Appeal the case came before the House of Lords. Questions of fact are not heard before the House of Lords, nor any law point not originally raised in the County Court itself. The question on which the Court of Appeal had reversed the case was disposed of in the House of Lords on the ground that no such point had been taken at the trial, and the question whether there was or was not absence of negligence by the defendant was not before the court. In the leading opinion, that of Lord Hai^sbury^ he states the question involved in the case, as follows : " The objection raised and the only objection raised to the plaintiff's right to recover was that he had voluntarily undertaken the risk. That is the question and the only question which any of the courts, except the County Court itself, had jurisdiction to deal with. Now, the facts on which that question depends are given by the plaintiff himself in his evidence. Speaking of the operations of slinging the stones over the heads of the workmen he said himself that it was not safe and that whenever he had sufficient warning or saw it he got out of the way. The ganger told the workmen employed to get out of the way of the stones which were being slung. Plaintiff said he had been long enough at the work to know that it was dangerous, and another fellow workman, in his hearing, complained that it was dangerous practice. Smith v. Baker. 149 " My Lords, giving full effect to these admissions on which the whole case for the defendants depends, it appears to me that the utmost they have proved is that in the course of the work it did occasionally happen that stones were slung in this fashion over workmen's heads; that plaintiff knew this and believed it to be dangerous, and whenever he could he got out of the way. The question of law that seems to be in debate is whether upon the facts, and on an occasion when the very form of his employment prevented him from look- ing out for himself, he consented to undergo this par- ticular risk and so disentitled himself to recover when a stone was negligently slung over his head or negli- gently permitted to fall on him and do him injury. I am of the opinion that the application of the maxim ' volenti non fit injuria ' is not warranted by these facts. . . . It appears to me that the proposition upon which the defendants must rely must he a far wider one than is involved in the maxim. I think they must go to the extent of saying that whenever a person knows there is a risk of injury to himself he debars himself from any right of complaint if an injury should happen to him in doing anything which involves that risk. For this purpose and in order to test this proposition we have nothing to do with the relation of employer and employee. The maxim in its application to the law is not so limited. Where it applies it applies equally to a stranger as to any one else, and if applicable td the extent that is now insisted on no person ever ought to have been awarded damages for being run over in the London streets, for no one (at all events some years ago, before the admirable police regulations of later 150 The New York Employees^ Liability Act. years), could have crossed London streets without knowing that there was a risk of being run over." " It is, of course, impossible to maintain a proposition so wide as is involved in the example just given, and in both Thomas v. Quartermaine, 18 Q. B. D. 685, and Yar- mouth V. France, 19 Q. B. D. 647, it has been taken for granted that mere knowledge of the risk does not neces- sarily involve consent to the risk." Lord Watson^ in his opinion, says, page 354 : " The only question which we are called upon to decide, and I am inclined to think the only substantial question in the case, is whether, upon the evidence, the jury were warranted in finding, as they did, that the plaintiff did not ' voluntarily undertake a risky employment with a knowledge of its risks.' Whether the plaintiff appre- ciated the full extent of the risk to which he was ex- posed or not it is certain that he was aware of its existence and apprehensive of its consequences to him- self, so that the point to be determined practically re- solved itself into the question whether he voluntarily undertook the risk. If upon that point there are con- siderations pro and contra requiring to be weighed and balanced, the verdict of the jury cannot be lightly set aside. Defendant's case is that the evidence is all one way; that the plaintiff's continuing in their employ- ment after he had become aware and had complained of the danger, of itself affords proof absolute and con- clusive of his having accepted the risk of a stone falling in the course of its transit from the quarry to the load- ing bank. . . . When, as is commonly the case, his (the workman's) acceptance or non-acceptance of the risk is left to implication, the workman cannot reason- Smith v. Bakbb. 151 ahly he held to have undertaken it unless he knew of its existence and appreciated or Jwd the means of appreciating its danger. But assuming tJwt he did so I am unable to accede to the suggestion that the mere fact of his continuing at his work with such knowledge and appreciation will in every case necessarily imply Ms acceptance. Whether it will have this effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the workman's connection with it, as well as upon other considerations which must vary according to the circiimstances of each case." Lord Heeshell, in his opinion on the case, at page 361, says : " In the present case it must be taken on the finding of the jury that the danger was at least en- hanced and the catastrophe caused by the negligence of the defendants, and the question for your Lordship's consideration is whether, under such circumstances, the fact of the plaintiff having continued to perform the duties of his service, precludes his recovery in respect to this breach of duty because the acts or defaults which constituted it were done ' volenti.' " " There may be cases in which a workman would be precluded from recovering even though the risk which led to the disaster resulted from the employer's negli- gence. If, for example, the inevitable consequences of the employed discharging his duty would obviously be to occasion personal injury, it may be that if, with this knowledge, he continued to perform his work and thus sustain the foreseen injury he cannot maintain an action to recover damages in respect of it. Suppose, to take an illustration, that owing to a defect in the ma- chinery at which he was employed, the workman could 152 The New York Employees' Liability Act. not perform the required operation without certain loss of a limb. It may be that if he, notwithstanding this, performed the operation he could not recover damages in respect to such a loss, but that is not the sort of case with which we have to deal here. It was a mere ques- tion of risk which might never eventuate in disaster. The plaintiff evidently did not contemplate injury as inevitable, nor even, I should judge, as probable. Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continu- ance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recover- ing in respect of his employer's breach of duty? I can- not assent to the proposition that the maxim 'volenti non fit injuria ' applies to such a case, and that an em- ployer can invoke its aid to protect him from liability for his wrong. ... It is suggested in the course of the argument that the employed might on account of special risk in his employment receive higher wages, and that it would be unjust that in such a case he should seek to make the employer liable for the result of the accident. I think that this might be so if the employed agreed, in consideration of special remuneration or otherwise, to work under conditions in which the care which the employer ought to bestow by providing proper machinery or otherwise to secure the safety of the em- ployed, was wanting and to take the risk of their ab- sence he would no doubt be held to his contract, and this is whether such contract were made at the incep- tion of the service or during its continuance." Assumption of Kisk a Question of Fact. 153 The decision of the House of Lords, on this extremely important case, was concurred in by all the judges ex- cept Lord Bramwell, and the point upon which they all agreed, as expressed in the head note, is this : " When a workman, engaged in an employment not in itself dangerous, is exposed to a danger arising from an opera- tion in another department, over which he has no con- trol, the danger being created or enhanced by the negli- gence of the employer . . . the mere fact that he undertakes or continues in such employment with full knowledge and understanding of the danger is not con- clusive to show that he has undertaken the risk so as to make the maxim ' volenti non fit injuria ' applicable in case of injury. The question whether he has so un- dertaken the risk is one of fact and not of law, and this is so both at common law and in cases arising under the Employers' Liability Act of 1880." Sec. 59. The statutory change made in the rule. Section " 3 " of the New York Employers' Liability Act is intended to substitute for the present rule in force under the common law in that State (sec. 49), the rule which prevails under the English common law as de^ fined in the decisions which have just been considered. Under this section of the New York law, an em- ployee is conclusively presumed by entering upon or continuing in his course of employment, to have as- sented to and accepted all the necessary or ordinary risks of his employment. The statute defines a neces- sary risk as one inherent in the nature of the busi- ness which remains after the employer has exercised due care in providing for the safety of his employees 154 The New Yobk Employees^ Liability Act. and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employee." This definition is declaratory of existing law. (See sec. 47; Booth v. B. d A. Ry. Co., 73 N. Y. 38; Powtear v. Tilly Foster Mining Co., 99 N. ¥. 366; McGovern v. Cent. Vermont Ry. Co., 123 N. Y. 287; Benzing v. Steinimy, 101 N. Y. 552. ) The section, however, provides that the employee shall not be presumed to have assented to any risks other than the necessary risks by reason of his entering upon or continuing in the service with knowledge of such risks. This, of course, is a modification of the existing" New York rule as to so-called " obvious risks " (see section 49), when those obvious risks exist by reason of the negligence of the employer. (See Crown V. Orr, 140 N. Y. 450 ; Kennedy v. Manhattan Ry. Co., 145 N. Y. 95; McQuigan v. D., L. & W. Ry. Co., 122 N. Y. 618.) The statute having, in this section, first provided, as has been just seen, that no conclusive presumption of assumed risk shall arise from the mere fact of con- tinuance, then provides that, " in an action maintained for the recovery of damages for personal injuries to an employee, received after this act takes effect, owing to any cause for which the employer would otherwise be liable, the fact that the employee continued in the ser- vice of the employer in the same place and course of employment after the discovery by such employee or after he has been informed of the danger of personal injury therefrom, shall not, as a matter of law, be con- sidered as an assent by such employee to the existence or continuance of such risks of personal injury therefrom Statutory Change in Rule in New York. 155 or as negligence contributing to such injury." As has been seen (see sec. 49), the rule of law prevailing in Kew York at common law has been that where the em- ployee continues at work after knowledge of the danger of personal injury from the defect created by his em- ployer's negligence, he is presumed by such continuance to have assented to the existence or continuance of the risk, and is not entitled to recover. The master, under the decisions cited in section 49, owes no duty of care {Knisley v. Pratt, 148 N. Y. 372) to such a servant, and has been entitled to a non-suit in an action brought by a servant when such knowledge, not merely of the defect, but of the danger therefrom, has been shown, and when, with that knowledge the employee has continued at work. In other words, by this statute, the assent by the employee to the existence or continuance of the risk of injury does not necessarily, and as a mat- ter of law, follow from the mere fact that he keep at work. The statute then provides that the question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence by his continuance in the same place and course of em- ployment with knowledge of the risk of injury, shall be one of fact subject to the usual powers of the court in a proper case, to set aside a verdict rendered contrary to the evidence. The effect of this section is this: There is no infer- ence to be implied by law (even where the workman knows of and appreciates the danger) from the fact of his continuance in the employment, that the question of assumption of unnecessary risk is one of fact and that is a question for the jury; that the consent to run 156 The New York Employees^ Liability Act. such risk must be proved by the defendant who wishes to rely on the maxim " volenti non fit injuria," the rea- son being that the Avorliman does not impliedly take the risk of his employer's negligence. The fact of con- tinuance in employment, while it remains an important element in the case, is no longer necessarily controll- ing in the determination of whether the employee voluntarily undertook the risk of injury from his master's negligence. It must be considered by the jury with such other circumstances as may be shown. It may be (as was intimated by Lord Hekshell in Smith V. Baker) that a situation may arise so full of peril that no reasonable man would be willing to endure it In such a case it might well be that an employee who continued under such serious perils would be guilty of such negligence as to disentitle him to recovery. In such a case a verdict in his favor would, of course, be properly set aside by the court It may be that the facts and circumstances disclosed and the nature of the defect are such as to lead irresistably to the conclusion that the plaintiff did voluntarily assume the risk of in- jury and for this reason is not entitled to a verdict (Church V. Appelby, 58 L. J. Q. B. 144, 5 T. L. K. 88.) The question of the assumption of an unnecessary risk of a given employment is a question of fact, and, ordi- narily, the mere fact of continuance in employment ia an element and only an element in the determination of that question by the jury. Sec. 6o. Notice of defect to employer; statutes compared. An employee to be entitled to take advantage of the liberal provisions of the Liability Act must notify his Notice of Defect — Statutes Compared. 157 employer of the defect which caused his injury when- ever he himself knows of the defect a reasonable time prior to the occurrence of the accident. If he cannot give the notice to the employer himself he must give it to some person superior to himself in the employer's service intrusted with some general superintendence. The only excuse for the failure to give such notice where the employee himself is aware of the defect or danger, is where the employer or some person superior to the employee intrusted in some general superintendence, knew of the defect so that such a notice was unneces- sary and would serve no useful purpose. This provi- sion is similar to the provisions of the other liability acts. The English statute provides (subd. 3 of sec. 2) that workmen shall not be entitled under this act to any right of compensation or remedy against the em- ployer ... in any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some per- son superior to himself in the service of the employer, unless he was aware that the employer or such superior person already knew of such defect or negligence. The Alabama law substantially follows the wording of the English statute. The portion underlined in the English statute is omitted in the Massachusetts and Colorado law. The Indiana law contains no require- ment for such a notice of defect Under the English and Alabama law it would appear that to excuse the giving of the notice of defect, two things must concur : First, the employer or some superior person must know of the defect; second, the employee must know prior to 158 The New York Employees' Liability Act. the accident that the employer or superior person had such knowledge of the defect that notice to them of it is unnecessary.^^ The New York statute does away with the necessity of this second element of proof, and the failure to give notice is excused if the employee can show, upon trial, that the employer or superior person in fact knew of the defect at any time prior to the accident. Sec. 6i. Servant's duty to complain. At common law, irrespective of the Liability Act, it has been held that it is the duty of an employee who knows of the existence of a defect in the materials or instrumentalities of his work, or of the incompetence of a fellow employee, or any other danger to which he is unnecessarily exposed in his work, to complain of the same and to notify the employer so that he may have an opportunity to correct the deficiency. This appliesi, of course, only in those cases in which the employer himself is not aware of the defect. See cases collected in the foot-note.*^ Sec. 62. The burden of proof as to the notice of defect. There has been no change made by the statute as to the burden of proof by this requirement concerning the notice of defect. The provision of the statute is not intended to create a condition which plaintiff must show has been complied with before he can main- 17. Seahoard Mfg. Co. v. Jf. T., L. E., etc., Ry. Co. v. Woodson, 94 Ala. 143. Lyons, 119 Penn. St. 324; Davit 18. Watts V. Boston Towboat v. Detroit, etc., Ry. Co., 20 Mich. Co., 161 Mass. 378; Keenan v. 105; WilUama v. St. Louis, eto„ Edison Electric Co., 159 Mass. Ry. Co., 119 Mo. 316. 379; Batt v. May, 144 Mass. 186; BUBDEN OF PEOOF AS TO NOTIOB OF DEFECT. 159 tain an action, but simply to give the employer a new ground of defense, the burden of showing which rests upon defendant. {Connolly v. Waltham, 156 Mass. 368; Thomas v. Bellamy, 126 Ala. 253; Broslin v. Kansas City, etc.. By. Co., 114 Ala. 398. There is noth- ing which requires plaintiff either to prove the giving of such notice or to make allegations concerning it in his complaint. (Connolly v. Waltham, 156 Mass. 368.) 160 The New York Employees' Liability Act. CHAPTER VI. Pleading and Practice. Sec. 63. No general change in pleading made by the act. , There can be no question but what the Employers' Lia- bility Act does not change the ordinary rules of plead- ing in negligence cases now in force in New York, and while there are many cases under the Liability Act in other States relative to the form of the action, these decisions are, for the most part, of local value only, brought under the common law system of pleading, and have no bearing upon actions under the New York Code. Sec. 64. The complaint under the Liability Act. The essential allegations of a complaint under the Liability Act differ very slightly from the allegations in an ordinary action brought for negligence under the common law. The complaint should state clearly that the relation of master and sen'ant existed at the time of the accident between plaintiff and defendant, and where the action is brought to recover for injuries oc- casioned by a person entrusted with and exercising superintendence, the fact of superintendence should be clearly alleged. It should appear, therefore, by the complaint in such an action, that the injuries resulted from the negligence of a person entrusted with and exer- cising superintendence, and should also appear that his sole or principal duty is that of superintendence.* 1. In Bear Creek Mill Co. v. tion alleged that the injury to Parker, 134 Ala. 293, the deelara- plaintiff was caused by the negli- The Complaint Under the Liability Act. 161 As has been shown before in section 38, in order to entitle the plaintiff to relief under the Liability Act, due notice of claim, stating the time, place and cause of the injury must have been served within the statutory period upon the defendant and such fact must appear by the complaint. It has been held that an allegation that notice of the time, place and cause of the injury was "duly" given to the defendant is sufficient. (See Steffe V. Old Colony By. Co., 156 Mass. 262; Cairncross V. Pewaukee, 78 Wis. 66; Todd v. Union Casualty Co., 70 App. Div. 52.) It is suggested, however, that better practice would require a fuller statement. {Reining v. Buffalo, 102 N. Y. 308 ; Holroyd v. Town of Indian Lake, 75 App Div. 197.) There is yet much uncertainty among the de- cisions as to whether in statutory actions an allegation that a statutory condition precedent had been " duly " complied with, is an allegation of a conclusion of law and not issuable, or an allegation of fact. (Abbott's Trial Brief on Pleading, sec. 255, and cases cited.) Moreover, an action under this act is obviously not gence of a certain named person etc.. It was held on demurrer to in the service or employment of be bad pleading in that the defendant corporation as " loader declaration did not state that or boss of the trainmen," to this loader or boss was entrusted whose order plaintifiT was bound with any superintendence as such to conform and did conform, and as contra distinguished from the that said injuries resulted from ordinary servant or employe, to plaintiff having so conformed to do certain designated work the orders and directions of such (Danzler v. De Bardeleben Coal person, and were caused by rea- Co., 101 Ala. 309), nor was it son that plaintiif attempted to averred that the direction was make the coupling of ears as di- one negligently given, rected by such section loader, 11 162 The New York Employees' Liability Act. covered by section 533 of the Code, which provides that in pleading the performance of a condition precedent in a contract it is not necessary to state the facts con- stituting performance, but that the party may state generally that he duly performed all conditions on his part. It was undoubtedly the rule of common law, except in cases covered by this section of the Code, that the plaintiff must particularly plead each condition precedent and compliance therewith, and the only relief from pleading, as was required at common law, the doing of acts claimed to be performance of the condi- tions, is found in the Code. (See Les Successurs D' Aries v. Freedman, 53 Supr. 518; Hatch v. Peet, 23 Barb. 575; Earner sclilag v. Electrical Co., 16 App. Div. 185; Ocrl) v. Metropolitan Collecting Co., 30 Misc. 314, 63 Supp. 513.) The better practice would, therefore, be to allege facts showing the time and manner of service of the notice and the contents of the notice itself, at least sufficiently to show that the notice stated the time, place and cause of the injury. In other respects the ordinary rules of pleading in negligence cases apply to a complaint drawn under the statute. When one seeks to maintain an action under a statute it is a sound and well settled rule of pleading that he must state specially every fact requisite to enable the court to judge whether he has a cause of action arising under the statute. {Bartlett v. Cozier, 17 Johns. 438; Austin V. Goodrich, 49 N. Y. 266.) " It is immaterial whether a condition be imposed in a statute giving a right of action or be provided by Pleading Notice op Claim. 163 contract or exist by some force or principle of common or statute law. The complaint must, by the settled rules of pleading, state every fact essential to the cause of action to give the court jurisdiction to entertain the particular proceeding." {Reining v. City of Buffalo, 102 N. Y. 308.) An allegation would be sufficient which followed in substance the statute and stated that notice of the time^ place and cause of injury was given to the employer within 120 days after the occurrence of the accident, and that a written notice, signed by the person injured, was served by delivering the same at his residence (or place of business), or, in the alternative, by post by letter addressed to him at — , being his last known place of residence (or place of business). (See Rochester Ry. Co. V. RobMns, 133 N. Y. 242.) When the notice is not given within 120 days, by rea- son of " physical or mental incapacity," the complaint should state, as a fact, that plaintiff by reason of such incapacity had been unable to give the notice, and that the same was given within ten days after the removal of the incapacity. In an action by an executor or an administrator, the better practice would be to allege the date of appointment and the date on which the notice was given by the executor or administrator, in case no notice has been given by the deceased in his life time. It is, of course, unnecessary, in a complaint, based upon such a general statute as the Liability Act, to recite the provisions of the act, or even to make any definite allusion to the statute itself. While the statute must be pleaded, that is, the complaint must state facts 164 The New Yoek Emplotees' Liability Act. bringing the cause within its provisions, it need not describe or recite it as the court takes judicial notice of such an enactment. {Edwards v. Law, 63 App. Div. 451, 71 Supp. 1097; Bogardus v. Trinity Church, — Paige, 178; O'Brien v. Fitzgerald, 29 Supp. ^l^',McHarg 17. Eastman, 7 Robert, 137; Shaw v. Tobias, 3 N. Y. 188; Brovm v. Harmon, 21 Barb. 508; Carris v. Ingalls, 12 Wend. 70; Bayard v. Smith, 17 Wend. 88; Qoslit v. Gowrey, 8 Supr. Ct 132 ; O'Brien v. Kurscheedt, 61 St Rep. 470, 29 N. Y. Supp. 973.) Sec. 65. Pleading several counts. In several States in which employers' liability acts are in force, it is the practice to set forth in the declara» tion separate counts, each alleging the breach of one or more of the provisions of the act when the action is founded upon more than one of the subdivisions creating liability, and it has been held that to join several breaches of the act as one count is bad pleading. This form of pleading is very cumbersome and tends rather to confusion of issues than to clearness or pre- cision. It is not required under the New York Code of Civil Procedure, and the statement of causes of in- jury in separate counts is not good practice in New York, whether the action is brought at common law or under the Employers' Liability Act. A cause of action for personal injuries occasioned by negligence is a single cause of action and very general allegations of negligence have been held sufficient pleading. (See Piszi V. Ried, 72 App. Div. 162; Leeds v. N. Y. Telephone Co., 64 App. Div. 484, 72 Supp. 250; Agnew v. Brooklyn Pleading Several "Counts." 165 City Ry. Co., 20 Abb. N. O. 235, and cases cited in the note; Clare v. N. Y., etc., R. Co., 172 Mass. 211; Oldfield V. N. Y., N. E. & H. Ry. Co., 14 N. Y. 310; Laughran v. Bremer, 113 Ala. 509. ) A cause of action for careless- ness or negligence, by means of which injury and death ensue, may and should be stated in one count in the com- plaint. {Dickens v. N. Y. C. R. R. Co., 13 How. 228; '^mith V. Rathhun, 22 Hun, 150.) The Code of Civil Procedure (sec. 481) requires that the complaint should set forth plainly and concisely the facts constituting each cause of action without unnecessary repetition, and while separate counts have been allowed in cases in which the precise nature of the cause of action itself is doubt- ful and plaintiff is uncertain as to the form in which he will be able to introduce his proof (see Blank v. Hartshorn, 37 Hun, 101; Talcott v. Van Vechten, 25 Hun, 565 ; Barr v. Shaw, 10 Hun, 580 ; Velie v. Newark Ins. Co., 12 Abb. N. C. 309 ) , separate statements of the same cause of action or separate counts is ordinarily held bad pleading. The action for personal injury deceived by negligence being a single cause of action, all the allegations of negligence may be properly alleged together in one statement. Moreover, it is to be ob- served, that while in Massachusetts or Alabama a decla- ration which does not separately state the counts upon the common law, superintendence, defects in ways, etc., is demurrable, in New York no such ground for de- murrer exists, the only remedy for defendant where causes of action are not separately stated is by motion to separately state and number. (See Chinn v. Felr 166 The New Yoek Employees' Liability Act. olwes, 41 Hun, 257; Townsend v. Cohn, 7 Oiv. Pro. 57; Bass V. Comstock, 38 N. Y. 21.) It has been held in Alabama that where the action is brought to recover for negligence of a superintendent, the name of the person who it is claimed was exercising superintendence should be alleged if known to the plain- tiff, and if the name is not known that fact should be alleged and must be proved on trial. (See Woodward Iron Co. V. Eerndon, 114 Ala. 191 ; Ala. O. 8. Ry. Co. v. Davis, 119 Ala. 572.) There can be no question but what such an allegation is not proper in the complaint under the New York Code. Matters of evidence are not properly to be pleaded in a complaint, and the name of the person claimed to have been a superintendent clearly falls within this rule as being a mere matter of evidence, even though under special circumstances it might be required in a bill of particulars. In Massachusetts the name of the superintendent is not required to appear in the declaration. {Woodbury v. Post, 158 Mass. 140.) As has just been noticed in a previous section (see sec. 62), the complaint need contain no allegation that notice of the existence of the defect from which the in- jury arose was given to the employer within a reason- able time prior to the accident, and no reference to the notice of defect provided for in section " 3 " of the act is necessary in the pleading. Sec. 66. Pleading by defendant. It has been held under the New York act that a com- plaint which sets forth facts which would justify a re- Pleading by Defendant. 167 covery at common law, but which fails to allege due ser- vice of notice of the time, place and cause of the injury, is demurrable as not stating facts sufficient to consti- tute a cause of action. The court regards this notice as a condition precedent to the maintenance of the common law action. (See Johnson v. Roach, 83 App. Div. 357, 82 Supp. 203; Gmaehle v. Rosenberg, 80 App. Div. 541, 80 Supp. 705.) These cases, however, as has been previously stated (see sec. 4), are, on this point, contrary to the rulings of other courts, construing the similar provisions of liability acts, and are of doubtful correctness. Under the New York Code the statute of limita- tions is not a defect unless pleaded in the answer, and this rule applies to the limitation contained in section " 2 " of the act requiring the action to be commenced within a year. (See Code of Civil Procedure, sec. 413; Eno V. Diefendorf, 102 N. Y. 720 ; Oreen v. Hauser, 31 St. Rep. 17; Plimpton v. Bigelow, 3 Civ. Proc. 182.) The requirements of the statute as to notice of the time, place and cause of injury do not fall within this rule, and no special reference to plaintiff's failure to furnish such notice is necessary in the answer to enable defend- ant to take advantage of the absence of the notice or the fact that it was not seTved within the statutory time. {Johnson v. Roach; Gmaehle v. Rosenberg, supra.) The rule in this regard is similar to the rule in casesi where plaintiff has failed to allege the notice required by statute to be given preliminary to the commencement of an action against a municipal corporation. It is well settled in such cases that the objection that the 168 The New York Employees^ Liability Act. plaintiff has failed to give the notice may be raised at any stage of the trial, although such failure is not alleged in the answer. (See Krall v. The City of New York, U App. Div. 259, 60 Supp. 661; also sec. 37, supra. ) Sec. 67. Election of remedy. There have been decisions in Massachusetts which intimate that where a plaintiff joins in the same decla- ration separate counts, one or more upon the common law and others upon the Liability Act, the trial court may, in its discretion, compel the plaintiff to elect upon which of these counts he will go to the jury. The rule is not a settled one, however, and it is still an open ques- tion whether a plaintiff can be compelled to elect before the close of the evidence, or whether in every case of this class the trial court can or ought to compel plaintiff to elect (See Clare v. N. Y. & N. E. By. Co., 172 Mass. 2n.) The only case definitely holding that the trial court has a discretion in ordering plaintiff to elect between the counts at common law and those upon the statute is Brady v. Ludlow Mfg. Co., 154 Mass. 468. There are cases, however, in which an election having been ordered by the trial court at the close of the evidence the ruling was held on appeal to have been harmless to plaintiff, even if the court had no power to make the direction, but these cases do not decide that any such discretionary powers exist in the trial court.* 2. Murray t. Knight, 150 Mass. Pialee Wharf