gers which are "so patent as to be readily |
observed by him by the reasonable use of
his senses, having in view his age, intelli-
gence, and experience." Chicago, B. & Q.
R. Co. v. Shalstrom, 45: 387, 195 Fed. 725,
115 C. C. A. 515.
13. An experienced boiler maker and
fireman is chargeable with notice of the
danger of back fire or explosion from the
use of shavings and sawdust in the furnace,
although he has never used that kind of
fuel, and therefore his employer is not neg-
ligent in failing to instruct him as to such
danger. Props v. Washington Pulley &
Mfg. Co. 45: 658, 111 Pac. 888, 61 Wash.
14. The rule that one sending his serv-
ants to work on another's property does not
assume the responsibility for secret and hid-
den dangers does not apply in case he con-
tracts to erect a building there, to absolve
him from the duty of ascertaining and
warning the servants of unsafe conditions
existing in such relation to the working
place as to render it unsafe. Clark v.
Union Iron & Foundry Co. 45: 295, 137 S.
W. 577, 234 Mo. 436.
ing in close proximity to wires carrying a
heavy electrical current owes his employees
the duty of determining whether or not the
insulation is safe, although his contract
gives him no authority over the poles or
wires, or the space occupied by them. Clark
v. Union Iron & Foundry Co. 45: 295, 137 S.
W. 577, 234 Mo. 436.
(Annotated)
19. A master will not be absolved from
liability for injury caused by sending an
employee up a pole carrying wires charged
with a deadly electrical current, to pass
guy ropes over the wires, by the fact that
the danger from the wires was hidden, and
that he had not been warned of it. Clark
v. Union Iron & Foundry Co. 45: 295, 137
S. W. 577, 234 Mo. 436.
20. Workmen employed about a building
in process of construction are entitled to
the benefit of a municipal ordinance requir-
ing the maintenance of a roof over the side-
walk where materials are being handled on
or near the line of the sidewalk. Ward v.
Ely-Walker Dry Goods Bldg. Co. 45: 550,
154 S. W. 478, 248 Mo. 348. (Annotated)
21. A contractor is not negligent in fail-
ing to anticipate that a bar used in re-
15. One contracting to place the super-moving false work, and left lying with a
structure of a bridge on concrete piers to
be erected by another is, where his em-
ployees do not know, and cannot, by the
exercise of ordinary care, learn, of the dan-
ger of attempting to do the work before
the piers have become sufficiently hard,
bound to warn them of the danger, or in-
spect the piers to learn their condition be-
fore sending the men upon them. Pennsyl-
vania Steel Co. v. Nace, 45: 281, 77 Atl.
1121, 113 Md. 460.
16. One contracting to place the super-
structure of a bridge upon concrete piers to
be erected by another cannot relieve itself
from liability to employees injured by be-
ginning the work before the piers were suf-
ficiently hard, by relying upon the engineer
in charge of the whole work to warn the
employees of the danger of beginning the
work too soon, and to see that the piers
were safe before permitting the work to
be begun. Pennsylvania Steel Co. v. Nace,
45: 281, 77 Atl. 1121, 113 Md. 460.
Duty as to place and appliances.
As to injury to servant of third person
by electricity, see Electricity.
Evidence as to reputation of engineer
to whom master delegates duty of
making working place safe, see
Evidence, 25.
Evidence on question of negligence as
to working place, see Evidence, 27,
few inches of its length projecting beyond
its support, would be hit by a falling piece
of lumber and hurled to the ground to the
injury of a workman passing there. Ward
v. Ely-Walker Dry Goods Bldg. Co. 45: 550,
154 S. W. 478, 248 Mo. 348.
22. One contracting to place the super-
structure of a bridge on concrete founda-
tions to be erected by another cannot rely
upon a custom among those engaged in
building bridges to trust to the engineer,
to relieve it of its duty to its employees
not to set them at work upon the piers un-
til they have become sufficiently hard to
bear the strain of the work. Pennslyvania
Steel Co. v. Nace, 45: 281, 77 Atl. 1121, 113
Md. 460.
23. A master who sets a servant at
work at a machine not properly guarded as
required by statute cannot escape liability
for injury to him because of absence of the
guard by the fact that he placed a proper
guard upon it, which has been removed
by another servant, where the statute re-
quires the guard to be maintained as well
as provided. Benner v. Wallace Lumber &
Mfg. Co. 45: 128, 105 Pac. 145, 55 Wash.
679.
(Annotated)
24. A statute requiring a master secure-
ly to guard gearing about which a servant
is required to work does not require him to
guard it so safely that the servant will be
secure against danger or violence while
17. An employer maintaining an eleva- performing his work, but his duty is to
tor to transport his employees to the vari- use ordinary care and prudence in deter-
ous floors of the building on which they mining whether or not a guard is needed,
work does not maintain to them the relation and, if so, to furnish a guard which or-
of carrier to passenger, but is required to dinarily careful and prudent employers
exercise only ordinary care and prudence under like circumstances deem it their
to provide safe carriage in view of the dan-duty to furnish, and not obviously danger-
ger reasonably to be apprehended. Putnam ous. West v. Bayfield Mill Co. 45: 134, 128
v. Pacific Monthly Co. 45: 338, 130 Pac. 986, N. W. 992, 144 Wis. 106.
25. A statute under a title, "An Act to
18. One who contracts to erect a build-Regulate Factories, Workshops, and Other
Places of Employment," which requires the
guarding of all shafts, fly wheels, etc., of
manufacturing establishments so located as
to be dangerous to employees in any such
place of employment, does not apply to a
portable threshing machine. Chapman v.
Piechowski, 45: 687, 141 N. W. 259, 153 Wis.
(Annotated)
26. Placing material for use as ballast
along a railroad track at a point a mile
from a yard or stopping place is not of it-
self negligence which will render the rail-
road company liable for injury to a train
hand who falls over it while in the perform-
ance of his duties. Lloyd v. North Caro-
lina R. Co. 45: 378, 66 S. E. 604, 151 N. C.
536.
27. The question of negligence in per-
mitting a brake to be out of order so that
the car runs away and collides with an-
other to the injury of an employee does not
depend upon the fact of the accident alone
when there is testimony to the fact that
the brake rod was broken or disconnected
from the shoe. Republic Elevator Co. v.
Lund, 45: 707, 196 Fed. 745, 116 C. C. A.
373.
28. A master, having contracted tempo-
rarily to perform labor, by and through his
servants, upon premises owned and fullv
controlled by another person, and having
no knowledge of danger to his servants
from defectiveness of the premises or ma-
chinery and appliances of such third person,
incidentally and casually to be occupied and
used by them for the purpose, and not hav-
ing guaranteed the safety or suitableness
thereof, is under no duty to inspect the
same, nor liable for an injury to his serv-
ant, occasioned by defects therein. Wilson
v. Valley Improv. Co. 45: 271, 73 S. E. 64,
69 W. Va. 778.
(Annotated)
29. An elevator company which receives
cars from a railroad company to be emptied,
and runs them to and from the elevator
by gravity, owes the duty to its employees
who are required to handle the cars to use
reasonable care, by inspection or otherwise,
to see that the operating mechanism of the
cars is in safe condition for use. Republic
Elevator Co. v. Lund, 45: 707, 196 Fed. 745,
116 C. C. A. 373.
(Annotated)
Liability to servants of third persons.
Question for jury in action for injury
to, see Trial, 10.
30. Where a telephone company con-
tracted to allow its poles to be used by
another company, the fact that it was in-
stalling a new set of poles, and to effect this
had stripped its wires except one from the
old poles, does not relieve it from liability
for injuries resulting to an employee of the
lessee company from the breaking of a pole
which he had climbed for the purpose of
removing the remaining wire, if the com-
pany ought reasonably to have expected
that some employee of the lessee company,
in the course of the removal of the remain-
ing wire, might be injured by climbing a
pole which was unsafe for that purpose be-
cause of a weakness not apparent, but dis-
coverable by methods in ordinary use, and
failed to use reasonable diligence to prevent
this. Aaron v. Missouri & K. Teleph. Co.
45: 309, 131 Pac. 582, 89 Kan. 186.
31. One telephone company which sells
to another the right to maintain a wire
upon its poles is liable for an injury to an
employee of the other company, who is
himself free from fault, which is occasioned
by the failure of the owning company to
use reasonable diligence to keep the poles
in such condition that they can be used
with safety in the customary manner.
Aaron v. Missouri & K. Teleph. Co. 45: 309,
131 Pac. 582, 89 Kan. 186.
32. Where a telephone company which
has contracted to allow its poles to be used
by another company is installing a new set
of poles, and to effect this has stripped
its wires from the old poles, a mere general
warning to the employees of the other com-
pany to be careful in removing the remain-
ing wires is not necessarily sufficient to ab-
solve the telephone company from further
responsibility. Aaron v. Missouri & K
Teleph Co. 45: 309, 131 Pac. 582, 89 Kan.
186.
Assumption of risk.
Presumption and burden of proof as to,
33. A servant, by entering and continu-
ing in the employment of a master without
complaint, assumes the ordinary risks and
dangers of the employment and the extra-
ordinary risks and dangers which he knows
and appreciates. Chicago, B. & Q. R. Co. v.
Shalstrom, 45: 387, 195 Fed. 725, 115 C. C.
A. 515.
34. The issue of assumption of risk is
not involved in an action to recover dam-
ages for personal injuries due to failure
of a master to guard machinery as required
by statute, where the only ground of negli-
gence alleged is failure to guard. Benner
v. Wallace Lumber & Mfg. Co. 45: 128, 105
Pac. 145, 55 Wash. 679.
35. A statute relieving a servant of the
hazard of assumption of risk in working
about unguarded gearings applies where
a guard which had been provided has be-
come temporarily displaced without the
knowledge of the master, where the guard
was not sufficient when provided. West v.
Bayfield Mill Co. 45: 134, 128 N. W. 992,
144 Wis. 106.
36. The doctrine of assumption of risk
is not applicable to an injury to the con-
ductor of a street car by falling from the
top of the car because of the absence of a
step which should have been on the car for
use in descent therefrom, since that is not
one of the risks usually incident to the
employment. Leary v. Houghton County
Traction Co. 45: 359, 137 S. W. 225, 171
Mich. 365.
37. An employee required to handle rail-
road cars does not assume the risk of in-
jury from a defective brake on the car, al-
though the car is marked in bad order,
unless he knows that the brake is defective
or the defect is plainly observable by him.
Republic Elevator Co. v. Lund, 45:707, 196
Fed. 745, 116 C. C. A. 373.
38. A minor employee who, without com-
pulsion, continues to work overtime about
machinery, with knowledge of physical ex-
haustion, assumes the risk of injury from
contact with machinery, due to his condi-
tion. Furlow v. United Oil Mills, 45: 372,
149 S. W. 69, 104 Ark. 489. (Annotated) |
39. Although the risk of the master's
negligence and of its effect, unknown to the
servant, is not one of the ordinary risks of
the employment which he assumes, yet,
if the negligence of the master, or its effect,
is known and appreciated by the servant,
or is "so patent as to be readily observed
by him by the reasonable use of his senses,
having in view his age, intelligence, and
experience," and he enters or continues in
the employment without objection, he elects
to assume the risk of it, and he cannot re-
cover for the damages it causes. Chicago,
B. & Q. R. Co. v. Shalstrom, 45:387, 195
Fed. 725, 115 C. C. A. 515.
40. An experienced carpenter who was
directed by his superior to assist in placing
joists at a height of 25 feet in a building
being erected, the construction of which and
of the temporary scaffolding which had been
erected to assist in such construction, be-
ing obvious to anyone who entered the
building, and who with other workmen, in-
stead of taking up enough lumber for one
joist before placing it in position, took up
enough for four or five, assumes the risk
incident to such employment, and cannot
recover for an injury due to the breaking
of the scaffolding. Chicago, B. & Q. R. Co.
v. Shalstrom, 45: 387, 195 Fed. 725, 115
C. C. A. 515.
41. Where a carpenter using a small
circular saw told his employer's foreman
that it "needed setting, he could do noth-
ing with it," and the foreman said, "Well,
get someone to set it for you (which he
did), and we will go over all the saws on
Saturday," this complaint and promise so
obviously had reference to the work to
be turned out by the saw, and not to an
increased danger to the carpenter using it,
which clearly was not contemplated by
either of them, that no alteration of the
assumption-of-risk rule resulted therefrom.
Dunphey v. Farr & Bailey Mfg. Co. (N. J.
Err. & App.) 45: 363, 85 Atl. 203, 83 N. J.
L. 763.
(Annotated)
42. The direct order of the master or
of the foreman to the servant to work at a
specified place, or with certain appliances,
does not release him from his assumption
of the apparent risks and dangers of de-
fects in the place, structure, or appliances
that are "so patent as to be readily ob-
served by him by the reasonable use of his
senses, having in view his age, intelligence,
and experience." Chicago, B. & Q. R. Co.
v. Shalstrom, 45: 387, 195 Fed. 725, 115
C. C. A. 515.
Contributory negligence.
Question for jury as to, see Trial, 10,
12.
43. The conductor of a street car is negli-
gent in relying on the presence of a step
where it should be, and attempting to use
it in descending from the top of the car,
when the most casual inspection would
have disclosed its absence, which will pre-
vent his holding the railroad company lia-
ble for injury through his consequent fall
to the ground. Leary v. Houghton County
Traction Co. 45: 359, 137 N. W. 225, 171
Mich. 365.
(Annotated)
Fellow servants and their negligence.
44. A brewing company which, for the
purpose of moving cars about its yards,
hires and undertakes to operate a railroad
engine, is within the provision of a statute
making liable every corporation operat-
ing a railroad for injuries sustained by its
servants by reason of any other servant, so
as to render it liable for injuries to a
janitor in its employ by the negligent oper-
ation of the engine by those in charge of
it. Schoen v. Chicago, St. P. M. & Ö. R.
Co. 45: 841, 127 N. W. 433, 112 Minn. 38.
(Annotated)
45. An office employee of a publisher
working on one of the upper floors of the
building is a fellow servant of one employed
by the publisher to operate the elevator to
carry employees between the street and the
office floors. Putnam v. Pacific Monthly
Co. 45: 338, 130 Pac. 986, Or. -.
Master's liability for acts of servant.
When relation exists, see supra, 1.
Responsibility for acts of carrier's serv-
![[blocks in formation]](https://books.google.co.nz/books/content?id=6ccKAAAAYAAJ&output=html_text&pg=PA1259&img=1&zoom=3&hl=en&q=editions:LCCN75643936&cds=1&sig=ACfU3U3gyFytXn6TYK1KVk0_efcWoxVaeA&edge=0&edge=stretch&ci=492,759,446,255)
47. The proprietor of a garage in which
automobiles are kept for hire may employ
servants in such work, and is bound to
exercise only ordinary care in the selection
and retention of such servants. Firemen's
Fund Ins. Co. v. Schreiber, 45: 314, 135
N. W. 507, 150 Wis. 42.
48. A garage keeper to whom an auto-
mobile is entrusted for repairs is liable to
the owner for any loss resulting from the
negligent acts or omissions of his agents
or employees while acting within the scope
of their employment even though the acts
complained of were not necessary to the
performance of the employees' duties and
were not expressly authorized by the em-
ployer or known to him. Roberts v. Kin-
ley, 45: 938, 132 Pac. 1180, 89 Kan. 885.
49. An employee who is managing and
controlling a garage at a time when an
automobile is left for repairs, and who re-
pairs the machine, is acting within the
scope of his employment in taking the ma-
chine out for the purpose of testing it, al-
though he goes an unnecessary distance in
making the test, to accommodate another
customer of the garage. Roberts v. Kin- | Liability for acts of independent con-
ley, 45:938, 132 Pac. 1180, 89 Kan. 885.
50. To render the wrong of the agent
that of the principal,-respondeat superior,
-the fact that it was done in the course
or period of employment is not sufficient;
it must be in the prosecution of the prin.
cipal's business, not by stepping aside there-
from to serve a personal end. Firemen's
Fund Ins. Co. v. Schreiber, 45:314, 135 N.
W. 507, 150 Wis. 42.
51. The proprietor of an automobile re-
pair shop, who has notice of proclivities
of his foreman rendering it likely that such
foreman would injure cars left for repair,
is liable for injuries resulting to a
while such foreman had the same out of
the shop and was running it for his own
pleasure, where he has not exercised ordi-
nary care to protect the cars of his custom-
ers; and it is immaterial whether the
acts of the foreman were or were not within
the line of his duty, or within the scope of
his authority. Travelers' Indemnity Com-
pany v. Fawkes, 45: 331, 139 N. W. 703,
120 Minn. 353.
Prejudicial error in taking question
from jury, see Appeal and Error,
1. Causa proxima, non remota, specta-
tur. Nehring v. Connecticut Co. 45: 896,
84 Atl. 304, 86 Conn. 109.
2. Consensus facit legem. Shaw V.
Goebel Brewing Co. 45: 1090, 202 Fed. 408,
- C. C. A.
3. Damnum absque injuria. Thompson
v. New Haven Water Co. 45: 457, 86 Atl.
585, Conn. -
4. Ex dolo malo non oritur actio. Mt.
Hope Nurseries v. Jackson, 45: 243, 128 Pac.
Okla.
52. Where the proprietor of an auto-
mobile repair shop had notice that his
foreman was possessed of proclivities ren-
dering it likely that he would injure cars
left at the shop for repairs, by taking them
out at improper times and making unau-
thorized use of them, it was such proprie-250,
tor's duty to exercise ordinary care to pro-
tect such cars from the danger of injury
to which they were thus subjected. Trav-
elers' Indemnity Co. v. Fawkes, 45: 331, 139
N. W. 703, 120 Minn. 353.
5. Interest reipublicæ ut sit finis litium.
Crouse v. McVickar, 45: 1159, 100 N. E.
697, 207 N. Y. 213.
6. Nemo bis punitur pro eodem delicto.
Rupert v. State, 45: 60, 131 Pac. 713,
Okla. Crim. Rep.
53. The night man at a garage, who,
after he had finished his duties, tempo-
7. Nemo debet bis puniri pro uno de-
rarily left the garage, intending to return licto. Stout v. State ex rel. Caldwell, 45:
and close the place permanently for the 884, 130 Pac. 553,
-; Rupert v.
night, came back, and, without authority, State, 45: 60, 131 Pac. 713, Okla. Crim.
took therefrom an automobile belonging to Rep.
a patron, is not acting within the scope of
his authority in so doing, and the pro-
prietor of the garage is not liable for dam-
ages resulting to the automobile from such
act. Firemen's Fund Ins. Co. v. Schreiber,
45: 314, 135 N. W. 507, 150 Wis. 42.
54. A telephone company which had a
license from a city to place a telephone
pole upon a boulevard or space between the
sidewalk and the traveled portion of the
street upon which a homestead abutted, and
whose servants, when ordered by the wife
of the owner of the homestead to desist
from digging a hole in which to place the
pole, at first departed, but later returned,
and, though the said wife of such owner
was in possession, and was still urging that
they had no right to do so, proceeded to
dig the hole and set up the pole, notwith-
standing her objection and resistance, is
liable for injury inflicted upon her by the
wanton negligence of its servants during
such attempt. Souther v. Northwestern
Teleph. Exch. Co. 45: 601, 136 N. W. 571,
118 Minn. 102.
8. Nemo debet bis vexari pro una et
eadem causa. Stout v. State ex rel. Cald-
Okla.
well, 45: 884, 130 Pac. 553,
Rupert v. State, 45: 60, 131 Pac. 713,
Okla. Crim. Rep.
9. No one can profit by his own wrong.
National Council J. O. U. A. M. v. Thomp
son, 45: 1148, 156 S. W. 132, 153 Ky. 636.
10. Res ipsa loquitur. Republic Ele-
vator Co. v. Lund, 45: 707, 196 Fed. 745,
116 C. C. A. 373.
11. Respondeat superior.
Fund Ins. Co. v. Schreiber, 45: 314, 135 N.
W. 507, 150 Wis. 42; Geiss v. Twin City
Taxicab Co. 45: 382, 139 N. W. 611, 120
MAZDAZNAN RELIGION.
Parent's embracing tenets of, as ground
for appointment of guardian for
child, see Guardian and Ward.
MECHANICS' LIENS.
What are fixtures subject to mechanics'
lien, see Fixtures.
1. A leasehold is within the operation
of a statute providing that a mechanics'
lien shall extend to any assignable, trans-
ferable, or conveyable interest of the own-
er, or reputed owner, in the land upon
which the improvement shall be placed.
Horn v. Clark Hardware Co. 45: 100, 131
Pac. 405, Colo. -.
2. The lessor is not a necessary party
to a proceeding to enforce a mechanics' lien
on the leasehold, under a statute provid-
ing that the owner or owners of the prop
erty to which the lien shall have attached
and all other persons claiming of record
any right, title, interest, or equity there-
in, whose title or interest is to be charged
with or affected by such lien, shall be made
parties. Horn v. Clark Hardware Co. 45:
100, 131 Pac. 405, Colo.
3. Including nonlienable articles in a
claim for a mechanics' lien does not de-
stroy the right to a lien for the articles
properly lienable. Horn v. Clark Hardware
Co. 45: 100, 131 Pac. 405, Colo. -.
MEDICAL ATTENTION.
Criminal liability for failure to obtain,
see Evidence, 35; Homicide, 2;
Trial, 15.
MENTAL ANGUISH.
See Damages, 8.
MILITARY TRIBUNAL.
See Martial Law, 3-5, 8.
Injunction against operation of assay
office, see Injunction, 1.
Negligence of independent contractor,
see Master and Servant, 55.
Rights of life tenant as to, see Life
Tenants, 2, 3.
Of appraisers in making award, see
Arbitration, 2.
Public money, see Public Moneys.
MONOPOLY AND COMBINATIONS.
That a union label is advantageous
to the community, in that it stands for
skilled labor. and improved sanitary con-
ditions, and long-termed contracts, does
not entitle its owner to monopolize the
labor market by making the right to its
use one element of the consideration upon
which employers refrain from employing
As to denial of due process of law or
infringement of right to life,
liberty, and property, see Con-
stitutional Law.
Courts' power to review ordinances,
see Courts, 5.
Admissibility of ordinance in evidence,
see Evidence, 37.
Introducing ordinance in evidence
without specially pleading it, see
Evidence, 44.
Injunction to prevent enforcement of
ordinance, see Injunction, 4-6.
Effect of ordinance as to revocation
of liquor license, see Intoxicating
Liquors, 1.
Right of servants to benefit of ordi-
nance requiring roof over sidewalk
|