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",5 



A TREATISE 



ON THE LAW OF 



PERSONAL INJURIES 



INCLUDING 

EMPLOYER'S LIABILITY, MASTER AND SERVANT 
AND THE WORKMEN'S COMPEN- 
SATION ACTS 



By HON. W. F^RAILEY 

OF TBB WISCON^ BAK 



SECOND EDITION 



TBKBB TOLUUBS 

VOLUME III 



• ' ■• ■ "•• ••• =• "•• -•• :•- /- ;■■- 



CHICAGO: 
CALLAGHAN & COMPANY 

1912 



L37I95 



APR 26 1951 



Copyright, 1912 

by 

CALLAGHAN & COMPANY 



• • • 



• t • 



» .. » » fc 



* • • "• 



V 



TABLE OF CONTENTS. 

VOLUME in. 

BOOK III CONTINUED. 
DEFENSES. 



CHAPTER IV. 

Acts Outside Scope of Em:^loyment. 

* 

L GENERAL CONSIDERATIONS. 

Sec 

738. Scope of chapter and introductory. 

739. Liability where offending servant acts, outside scope of 

emplo3rment. 

II. WHEN SERVANT ACTING OUTSIDE SCOPE OF DUTIES. 

740. General rule. 

741. Incidental acts. 

Conductor. 

742. Servant not actually at work. 

743. After working hours. 

744. Going to and from place of work. 

745. While resting. 

746. Momentarily engaged in conversation. 

747. Servant working in different manner. 

748. Servant as within scope when acting pursuant to orders 
^ and vice versa when not. 

III. ACTS OUTSIDE SCOPE OF DUTY, NOT PURSUANT TO 

ORDERS. 

749. General rule. 

Baggageman taking and delivering message. 
Forbidden act. 

(V) 



vi Masteb and Sebyant. 



Sec. 

Freight conductor coupling cars. 
Repairs; making where not a duty. 

750. Servant working in different place. 

Engine hoetler going ahead o| engine. 
Scrub woman going into dark room for material. 
Employee leaving place of work to adjust belt. 
Riding velocipede on track. 

751. Acts in emergencies. 

752. E£fect on custom. 

IV. OBEDIENCE TO ORDER TO PERFORM WORE OUTSIDE 

SCOPE OF EMPLOYMENT. 

753. In general. 

754. Acting outside scope as defense. 

755. Authority of servant giving command. 

Obedience to direction of foreman to perform an act 
outside of working hours. 

Conductor inviting workman to ride on his train. 

Conductor ordering brakeman to couple cars. 

Elevator operator inviting employee to ride thereon. 

Employee requesting another to go in a place where her 
duties did not require her. 

Employee riding on train by permission of trainmen. 

Employee calling assistance with acquiesence of over- 
seer. 

Employee calling a minor employee to assist in mend- 
ing a belt. 

Foreman of one room directing employee under con- 
trol of foreman of another. 

Loom fixer requesting assistance of weaver. 

Section boss sending one of his crew to signal train 
after working hours. 

Weaver assisting a belt adjuster. 

756. Assumption of risks. 

Master's duty in respect to appliances and place where 

place of work changed. 
Rule as stated by Indiana court. 
Arkansas. 



Tablb of Contents, vii 



Federal court. 
Illinois. 

Maryland doctrine apparently same as Indiana. 
Michigan. 

Concise statement of rule. 
Doctrine summarized. 
Where peril increased temporarily. 
Temporary work, latent dangers. 
Employee inexperienced directed to do an extra haz- 
ardous work. 
Effect of fear of discharge. 
Question ordinarily one of fact. 

757. Ordering minor to perform more dangerous work. 

758. Custom to obey orders outside of line regular duty. 

CHAPTER V. 

Failure of Servant to Give Notice of De- 
fects OR Negugence. 



759. Statutes. 

760. Effect. 

761. Knowledge of master or superior servant. 

762. Of what defects, notice must be given. 

763. To whom notice must be given. 



BOOK IV, 

EVIDENCE. 

Chapter, 

I. General Considerations, §§ 764-765. 
II. Burden of Proof, §§ 766-772. 

III. Admissibility of Evidence, §§ 773-792. 

IV. Character and Sufficiency of Evidence, §§ 
793-797. 

CHAPTER I. 

General Considerations. 

Sec. 

764. Scope of treatment. 

765. Presumption in general. 

Presumption that injured servant was not negligent. 

CHAPTER 11. 

Burden of Proof. 

Sec. 

766. Negligence of defendant. 

Presumption of due care on part of employee does not 

change burden. 
Particular facts. 
Proof of injury alone. 
Rule of res ipsa loquitur as changing burden. 

767. Negligence of defendant as cause of injuries. 

768. Assumed risk. 

Alabama. 

Arkansas. 

California. 

Colorado. 

Connecticut. 

(viii) 



TABiiE OF CoNTEisrrs. ix 



Sec. 



Delaware. 

Florida. 

Georgia. 

Idaho. 

Illinois. 

Indiana. 

Iowa. 

Kentucky. 

Louisiana. 

Maine. 

Michigan. 

Minnesota. 

Missouri. 

Montana. 

Nebraska. 

New Jersey. 

New York. 

North Carolina. 

Ohio. 

Oregon. 

Rhode Island. 

South Carolina. 



Utah. 

United States courts. 
Vermont. 
Virginia. 
Washington. 
West Virginia. 
Wisconsin. 
769. Contributory negligence. 
Alabama. 
Arizona. 
Arkansas. 
California. 
Colorado. 
Connecticut. 
Delaware. 



Mastbb and Servant. 



td6C* 

Florida. 

Georgia. 

Idaho. 

Illinois. 

Indiana. 

Iowa. 

Kansas. 

Kentucky. 

Louisiana. 

Maine. 

Maryland. 

MassachusettB. 

Michigan. 

Minnesota. 

Mississippi. 

Missouri. 

Montana. 

Nebraska. 

New Hampshire. 

New Jersey. 

New York. 

North Carolina. 

Ohio. 

Oregon. 

Pennsylvania. 

Rhode Island. 

South Carolina. 

Tennessee. 

Texas. 

United States courts. 

Vermont. 

Virginia. 

Washington. 

West 'N^rginia. 

Wisconsin. 

Utah. 

770. Fellow-servants. 

771. Relationship of parties. 

772. Rule in Georgia. 



Table of Contents. zi 



CHAPTER III. 
Admissibility of Evidencb. 

773. Admissions and declarations. 

Declarations made at time of accident. 

Declarations of agent sent to obtain statement as to 

accident. 
Admissions not made in performance of duty. 

774. Admissions and declarations of coemployee of injured 

servant. 
Statements as to condition of appliance. 
Voluntary exclamations of pain and suffering. 
Time intervening between accident and declaration. 

775. Custom and customary methods. 

Customary method of performing an act. 
Rules and customs of operating trains. 
Custom may be shown as aiding to interpret contract 
of employment. 

776. General notoriety. 

777. Defects at other places. 

778. Conditions prior and subsequent. 

779. Other accidents at same place, from same appliance 

and from same cause. . 

Not admissible to show negligence but to prove defect 

or notice. 
Evidence as admissible to show others had not been 

injured. 

780. Other manifestations of same defect in appliance or like 

appliance. 

781. Other negligence of defendant. 

782. Repairs or changes after accident. 

Substitution of new for old appliance. 
Rule applies to change of method. 
Warning subsequently given.' 
Evidence admissible for certain purpose. 

783. Expert and opinion evidence. 

Whether particular act or conduct was negligence. 



Mabter and Sebvant. 



opinion evidence as to the point the jury are to decide. 
Opinion evidence as to whether situation was perilous. 
Competency of expert. 
Application of rules. 

784. Speed of trains. 

785. Models, plats, diagrams, photographs. 

786. Instruction and warning. 

787. Injury to witness at same time and place. 

788. Existence of insurance. 

789. Carlisle and other mortuary tables. 

790. Evidence as to contributory negligence. 

791. Evidence as to communications with deceased persons 
where employee or opposing party dead. 

792. Evidence as corresponding with pleading. 



CHAPTER IV. 
Character and Sufficiency of Evidence. 

793. Scintilla of evidence. 

794. Positive and negative proof. 

Rule applied to order given. 

Rule applied where injured person testified she looked 

and listened but did not hear. 
Rule applied where section boss injured. 
Rule applied where engineer on rear engine of double 

header injured. 
In Kansas rule qualified. 

Rule not approved by Iowa and Missouri courts. 
Rule founded upon common knowledge and experience. 
Rule applied as to cause of accident. 

795. Sufficiency of evidence to show negligence. 

Two or more causes which might have produced the 

injury. 
Balancing the probabilities. 



Table op Contents. xiii 



Sec 

Merdy proving a condition which might have pro- 
duced an injury presents no issue. 

Something more than a probability must be shown. 

Presumption in case of death, that employee was in 
exercise of due care, as showing negligence on part 
of master 

Proof beyond reasonable doubt. 

Application of rules. 

Sufficiency of proof as to cause of death. 

796. Sufficiency of evidence to show want of contributory 

negligence. 

797. Res ipsa loquitur. 

Essential to application of doctrine that accident does 
not ordinarily occur if due care has been exercised. 
Where unusual and unexpected accident happens. 
Rule held not applicable to complicated machinery. 
Rule as applicable only where no positive proof exists. 
Reason for rule. 

Rule as applicable to master and servant. 
Statutory provisions. 
What must be proved. 
Evidence to rebut presumption. 
Automatic starting of machine. 
Collision between trains. 
Derailment of engine or train. 
Injuries caused by falls or breaks. 
Explosions. 

Trains breakii^ apart. 
Wreck of train. 
Mine, caving. 

Box on hand car striking platform. 
Shock received by operator of telephone exchange. 



BOOK V. 

PROCEDURE. 

Chapter. 

I. Time to Sue, § 798. 

11. Parties, §§ 799-801 . 

III. Notice Before Bringing]^Suit, §§ 802-819. 

IV. Pleading, §§ 820-856. 

CHAPTER I. 
Time to Sue. 

798. What law governs. 

CHAPTER II. 

Parties. 

wee. 

799. In general. 

800. Joinder of master and negligent servant as defendant. 

801. Who may sue where injured servant dies. 

CHAPTER III. 

r 

Notice Before Bringing Suit. 

t^ec. 

802. Necessity for. 

Contract provisions for notice. 

Where injured servant a minor. 

Waiver. 

Estoppel to question failure to give notice. 

803. Purpose of statutes. 

804. What law governs. 

(xLv) 



TaBLB of OoNXBNTS. XV 



805. Complaint as notice. 

806. Necessity for writing. 

807. Time within which notice would be given. 

Service before action conmienced. 
When service by mail deemed complete. 
Extension of time. 

808. Who may or must give notice. 

809. Contents. 

Time. 
Place. 
Cause of injury. 

810. Signature. 

811. Construction. 

812. Amendments. 

813. On whom notice to be served. 

814. Mode of service. 

815. Demand for further notice. 

816. Effect of mistakes or defects in. 

817. Effect of notice. 

818. Raising objections on trial. 

819. Federal courts follow state decisions. 



CHAPTER IV. 



Pleading. 



1. GENERAL CONSIDERATIONS. 



820. Scope of chapter. 

821. Variance between pleading and proofs. 

II. COMPLAINT. 

822. General necessary allegations. 

823. Mode of stating facts. 

824. Alleging ownership or control of appliances or place. 

825. Alleging relation of master and servant. 



XVi MiJSTEB AND SeBVANT. 



826. Alleging injured servant was acting within scope of em- 

ployment. 

827. Allegation of existence of duty. 

828. Alleging negligence or breach of duty. 

Necessity for express averment of negligence. 

Where statute makes accident itself proof of negli- 
gence. 

Alleging negligence as that of defendant when in fact 
negligence of servant. 

Stating name of negligent employee. 

Alleging negligent servant was acting within scope of 
employment. 

Alleging negligence as proximate cause of injury. 

829. Alleging knowledge on part of defendant. 

Sufficiency of allegation. 

830. Alleging service of notice of injury. 

831. Negativing defenses in general. 

832. Negativing assumption of risk. 

Sufficiency of allegation. 

Averment of promise to remedy defect. 

Complaint showing assumption of risk on its face. 

833. Negativing contributory negligence. 

Knowledge or means of knowledge. 
Sufficiency of allegations. 

834. Negativing negligence of fellow-servants. 

835. Alleging unsafe place of work. 

836. Alleging unsafe appliances. 

Under statute. 

837. Failure to warn or instruct servant. 

838. Failure to make, promulgate or enforce rules. 

839. Alleging employment or retention of incompetent co- 

servant. 

840. Insufficient number of servants. 

841. Employment of infants. 

842. Wanton or wilful negligence. 

843. Violation of statute or ordinances. 

Federal interstate commerce act. 

Statutes as to defects in wa}^, works, machines, etc. 



Tablb of CoiTTBNTs. xvii 



Statute making master liable for acts of superinten- 
dent. 

Statutory provision as to conformity to orders of 
superior servant. 

Statutory provision as to person in charge of engine 
train, etc. 

844. Pleading damages. 

845. Joinder of grounds in same court. 

Election between counts. 

847. Bill of particulars. 

848. Sufficiency of complaint as dependent on when attached. 

849. Amendments. 

III. ANSWER. 

850. General considerations. 

851. Alleging assumption of risk. 

As distinguished from contributory negligence. 
Sufficiency of plea. 

852. Alleging failure of servant to report defects. 

853. Alleging contributory negligence. 

Sufficiency of plea. 

Casual connection. 

Violation of rules. 

Alternative allegations. 

In connection with general denial. 

854. Pleading defense of fellow-servants. 

IV. REPLY AND SUBSEQUENT PLEADINGS. 

855. Replication or reply. 

856. Rejoinders. 



BOOK VI. 

WORKMEN'S COMPENSATION ACTS. 

dec* 

857. Introductory. 

858. Nature of statutes. 

859. Historical; English statutes. 

860. States which have enacted statutes. 

861. General classification of these statutes. 

862. Massachusetts statute. 

863. New Jersey statute. 

864. Ohio statute. 

865. Washington statute. Held valid. 

866. Wisconsin statute. 

867. Indiana statute. 

868. The present outlook for new legislation and the effect 

thereof. 

869. Appendix. 

870. California statute. 

871. Kansas statute at length, laws 1911, ch. 128. 

872. Massachusetts statute at length, laws 1911, ch. 751. 

873. New Hampshire statute, laws 1911, ch. 163. 

874. New Jersey statute at length, laws 1911, ch. 95. 

875. Ohio statute at length, laws 1911, ch. 127. 

876. Washington statute at length, laws 1911, ch. 74. 

877. Wisconsin statute at length, laws 1911, ch. 50, ch. 644. 

878. Nevada statute at length, laws 1911, ch. 183. 

879. Illinois statute at length, laws 1911, p. 314. 
New York statute, see page 1835. 
California statute, see page 1621. 



(xviii) 



MASTER AND SERVANT. 

VOLUME III. 



CHAPTER IV, 



ACTS OUTSIDS SCOPS OF SMPLOTMSNT. 



Seo. 



761. 
762. 

IV. 



763. 
764. 

766. 



L General GomnDSBATioNa. 

8eo. 

738. Soope of ohapter and intro- 

duotory. 

739. Liability where off ending serv- 

ant acts outside soope of 
employment. 

II. Whxn bbbtant actino with- 
out 8COPB OF DUTIB8. 

740. General rule. 

741. Incidental acts. 

Conductor. 

742. Servant not actually at work. 

743. After working hours. 

744. Going to and from place of 

work. 
746. While resting. 

746. Momentarily engaged in con- 

versation. 

747. Servant working in different 

manner. 

748. Servant as within scope when 

acting pursuant to orders 
and vice versa when not. 



in. Acts outbids scopb of duty, 

NOT PX7B8UANT TO OBDBRS. 

749. General rule. 

Baggage man taking and 

delivering message. 
Forbidden act. 
Freight conductor coupling 

cars. 
Repairs, making where not 
a duty. 
760. Servant working in different 
place. 

Engine hostler going ahead 
of engine. 
3 M. ft S.— 1 (1983) 



Scrub woman going into 

dark room for material. 

Employee leaving place of 

work to adjust a belt. 
Riding velocipede on track. 
Acts in emergencies. 
Effect of custom. 

Obedience to obdeb to peb^ 
fobm wobk outside scope 
of employment. 

In general. 

Acting outside scope as de- 
fense. 
Authority of servant giving 

command. 

Obedience to direction of 
foreman to perform an 
act outside of working 
hours. 

Conductor inviting work- 
men to ride on his train. 

Conductor ordering a brake- 
man to couple cars. 

Elevator operator inviting 
employee to ride thereon. 

Employee requesting an- 
other to go in a place 
where her duties did not 
require her. 

Employees riding on train 
by i>ermi8sion of train- 
men. 

Employee calling assistance 
with acquiescence of over- 
Beef. 

Employee calling a minor 
employee to assist in 
mending a belt. 



1984 



Mastbb akd Sebvakt. 



§738 



Seo. 

Forenmn of one room di- 

reotmg employee under 

control of foreman of 

another. 
Loom fixer requesting aa- 

dstanoe of weaver. 
Section boss sending one of 

his orew to signal train 

after working hours. 
Weaver assisting a belt 

adjuster. 
766. Assumption of risks. 

Master's duty in respect to 

appliances and place 

where place of work 

changed. 
Rule as stated by Indiana 

court. 
Arkansas. 
Federal court. 



Sec. 



Illinois. 

Maryland doctrine api>ar- 
ently same as in Indiana. 
Michigan. 

Concise statement of rule. 
Doctrine summarized. 



Where peril 
porarily. 

Temporary 
dangers. 

Employee, 



tem- 



work, latent 



inexperienced, 
directed to do an extra 
hazardous act. 

Effect of fear of discharge. 

Question ordinarily one of 
fact. 

757. Ordering minor to perform 

more dangerous work. 

758. Custom to obey orders out- 

side of line of regular duty. 



I. General considerations. 

§ 738. Scope of chapter and introductory. 

In this chapter it is intended to consider (1) when a 
servant may be said to be acting outside the scope of his 
employment; (2) the effect of voluntarily acting outside; 
and (3) the effect of so acting pursuant to orders. The 
question of fellow-servants has been considered in pre- 
ceding chapters relating thereto. Where a servant is 
injured and sues his employer therefor, the defense 
is often set up that the servant was acting outside the 
scope of his duties at the time of his injury. Whether a 
recovery is precludad because of such fact depends 
primarily on whether the servant was voluntarily outside 
the scope of his duties or whether he was so acting pursu- 
ant to a command of the master or his representative. 
If the former, the servant cannot recover. If the latter, 
there are several matters to be considered, such as whether 
the command, if given by another servant, was within 
the authority of such other servant; and the effect of the 



§739 



Acts Outside Scope of Employment. 



1985 



command and obedience thereto on the defenses of 
assumed risk and contributory negligence, etc. 

Questions relating to scope of employment occur very 
frequently where a third person attempts to hold a master 
liable for the acts of his servant, the rule being that an 
act done by a servant while engaged in his master's work, 
but not done as a means of or for the purpose of performing 
that work, is not to be deemed the act of the master, and a 
person who is injured by such act, even if a negligent one, 
cannot recover damages of the master therefor. ^^ 

The foregoing doctrine is sustained in many cases, *• 

§ 739. Liability where offending servant (not injured 
servant) acts outside scope of employment. 

It will be noticed hereafter, in this chapter, that the 
rule is that a servant acts outside the scope of his em- 
ployment so as to bar a recovery, where pursuant to the 
orders of another servant who had no authority to give 
the order. ^ 

Another phase of the question presents itself where 
the injured servant is acting within the scope of his 
employment but the offending servant is acting outside 
the scope of his employment. In such a case, it seems that 
the master is not liable, the rule being the same as if the 
action was brought by a third person not a servant,*^ 
provided the two servants are not fellow-servants. 



48. This was said where a boy in 
defendant's employ, in leading a 
oolt to water, invited a small boy 
to ride the oolt, who was injured. 
Bowler v. O'Connell, 162 Mass. 
319, 38 N. E. 489, 44 Am. St. Rep. 
359. 

49. Howe V. Newmarch, 12 
AUen 49; Hawks v. Charlemont, 
107 Mass. 414; Hawee v. Knowles, 
114 Mass. 518; Levi v. Brooks, 121 
Mass. 501; George v. Qobey, 128 
Mass. 289; Wallace v. Merrimao, 
R. N. & £. Co., 134 Mass. 95; 
Walton V. New York, C. S. Co., 



139 Mass. 556; Toung v. South 
Boston loe Co., 150 Mass. 527; 
Mitchell Y. CrossweUer, 13 C. B. 
237; Croft v. AUison, 4 B. & Aid. 
590; limpus v. London Genl. 
Omnibus Co., 1 H. & C. 526; Ber- 
wick Y. Eng. Joint Stock Bank 
L. R., 2 Ex. 259; Snyder y. Hanni- 
bal & St. J. R. Co., 60 Mo. 413; 
Morier v. St. P. M. & M. R. Co., 
31 Minn. 351, 17 N. W. 952; Davis 
V. Houghtellin, 33 Neb. 582. 

50. See infra, §755. 

51. If a foreman employed by a 
corporation has authority to em- 



1986 



Masteb and Servant. 



§740 



While acting without authority of his employer and 
beyond the scope of his employment, the servant is a 
stranger and a mere volunteer, and hence where an injury 
is caused to an employee by the negligence of another 
employee, while acting as a mere volunteer outside the 
Bcope of his employment, the master is not liable, as where 
one without authority ran a rei)air car on the track which 
collided with a regular car, injuring the motorman.*^ 

But where the master has acquiesced in employees 
voluntarily performing service outside of their regular 
work, such service may be considered within the scope of 
their employment to the extent that the master will 
be liable for their negligent acts while so engaged, resulting 
in injury to a servant.** 

II. When servant acting without scope op duties. 

§ 740. General rule. 

The scope of the employment is defined by what the 
servant was employed to perform and what, with the 
knowledge and approval of the employer, he actually did 
perform, rather than by the mere verbal desigoation of 
his position.** 



ploy and discharge servants, it is 
within the scope of his authority to 
use reasonable force to remove a 
discharged workman from the shop, 
and the corporation will be liable 
if he uses excessive force for that 
purpose. Rogahn v. Moore Mfg. 
Co., 79 Wis. 673. 

52. Moran v. Rockland R. & 
C. St. R. Co., 99 Me. 127, 68 Atl. 
676. 

63. Big Five Tunnel, O. R. & 
T. Co. V. Johnson, 44 Colo. 236, 
99 Pao. 63. 

64. Rummell v. Dilworth, 111 
Pa. St. 343, 2 Atl. 365. Where an 
employee was injured while working 
with a steam hammer, and it was 



urged that the work that he was 
doing at the time was without the 
scope of his employment, the plain- 
tiff having testified that he was 
employed to wheel scrap iron from 
the yard into the shop where the 
hammer was, and to fill the tanks 
with water and bring ice, and that 
the first time that he had worked 
at the hammer was the morning of 
the accident, and his immediate 
superior having testified that when 
first employed by the company he 
was liable to be put to do any- 
thing he was called upon to do in 
or about the shop, it was said: 
"However this may be, it appears 
from his own testimony that he had 



§741 



Acts Outsidb Scope of Employment. 



1987 



Work similar to that ordinarily performed by a servant, 
especially where done on one or more former occasions, is 
not necessarily outside the scope of the employment.^^ 

§ 741. Incidental acts. 

An act may be said to be within the scope of a servant's 
emplo3nment when, although it is unauthorized, it is so 
directly incidental to some act or class of acts which the 
servant was authorized to do, that it may be said to be a 
mode, though improper, of performing the act authorized ; 
as, for instance, where persons were employed to imload 
freight at a particular point from a boat, and while waiting 
at the clerk's desk for their pay, the boat was loosed from 
its moorings and they were forced to act as seamen until 
they escai)ed.^* 

This is perhaps an extreme case, and relates to the 
scope of authority of the directing servant. It illustrates, 
however, the question of incidental acts whether on the 
part of the directing servant or voluntary acts of the 
servant. 

A night watchman whose principal duty is to prevent 
pilfering by thieves acts in the line of his duty where he is 
injured in attempting to close a defective door.*^ 



been at work there for two months; 
made no objection when called 
upon to work at the hammer, and 
voluntarily undertook that em- 
ployment. It was held that no 
ground was presented for recovery. 
Hanrathy v. Northern Central 
R. Co., 46 Md. 280. Where an 
employee whose duties were to 
trim lamps on an electric tower was 
injured by the fall of the elevator, 
and it appeared that another em- 
ployee had told him as he was about 
to ascend that the lights had 
already been trimmed, but that the 
overseer directed him to go, not- 
withstanding such information, it 
was said that it made no differ- 



ence whether such lamps had been 
trimmed that day or not. The fore- 
man had the right to see that the 
work was done properly, and to 
direct that they be trimmed again, 
and it was the duty of the plaintiff 
to obey. Weiden v. Brush Electric 
light Co., 73 Mich. 268, 41 N. W. 
269. 

55. See Findlay v. Russel 
Wheel & Foundry Co., 108 Mich. 
286, 66 N. W. 50; Butler v. Chicago, 
B. & Q. R. Co., 87 la. 206, 54 N. 
W.208. 

56. The State of Missouri, 76 
Fed. 876. 

57. Upton V. Bartlett, 59 Hun 
(N. Y.) 619, 13 N. Y. Supp. 451. 



1988 



Masteb and Servant. 



§741 



An oiler, swe6i)er and grinder in a cement factory, 
whose testimony showed that he was expected to do what- 
ever he was directed to do about the place, was not without 
the scope of his employment when ordered to open a cock 
in an air pii)e with a wrench, a duty he had performed 
before and with which he was familiar. ^^ 

So where plaintiff was employed to do general work in an 
elevator, and he alleged that he was bound to obey orders 
iQ respect to that work, he cannot be heard to claim that 
he was only employed to work at the hoppers in imloading 
cars, and that it was no part of his work to assist in fas- 
tening vessels to a pier.** 

Other illustrations are given in the notes below. *^ 



58. Swiok Y. Aetna Portland 
Cement Co., 147 Mioh. 454, 111 
N. W. 110. 

59. Baltimore Elevator Co. v. 
Neal, 65 Md. 439, 5 AtL 338. 

60. Elevator bot removing 
obstruction to elevator. an 
elevator boy was not without the 
soope of his employment in going 
to the upper story to see what was 
the cause of the elevator being 
stuck, and in attempting to remove 
the obstruction. The elevator fell 
to the bottom, the rope having be- 
come uncoiled. His ordinary duties 
only carried him to the third floor 
and by his inattention the elevator 
went beyond that floor. Stone v. 
Boscawen Mills, 71 N. Hamp. 288, 
52 Atl. 119. 

Errand bot sent to dip acid 
MIXTURE FROM CROCK. It being 
part of the duties of a minor em- 
ployee to do errands, his regular 
duties at first being a "scratcher 
on silver" in a jewelry factory, and 
later to operate a footpress, it could 
not be said he was acting outside of 
his employment when sent into the 
yard to dip a portion of an acid 



mixture from a crock. He was 
injured in such attempt by the 
pitcher which had no handle slip- 
ping from his hand spilling the 
mixture, some of which splashed 
into his eyes. Hodde v. Attleboro 
Mfg. Co., 192 Mass. 237, 79 N. E. 
252. 

Employee in packing depart- 
ment OF MILL called TO START 
IT AND OIL MACHINERY. A Servaut 

who has worked in the paddng de- 
partment of a flouring mill and had 
charge of the machinery of such 
department, and occasionally called 
to assist in the mill proper, is not 
taken from his employment and set 
at a more hazardous employment 
by being called to help start the 
mill and oil its machinery. Hatha- 
way V. Washington Milling Co., 
139 Mich. 708, ia3 N. W. 164. 
Employee in railroad shop 
called to assist in raising car 
IN YARD. An employee in the wood 
working department of a railroad 
shop, who had occasionally been 
called out of the shop to assist in 
clearing wrecks and to repair cars, 
was not called out of his regular 



§741 



Acts Outside Scope of Employment. 



1989 



Conductor. 

A conductor was within the eeope of his emplosrment, 
where informed by the road superintendent that two 
culverts might be in a dangerous condition, where he 
caused the engine to be detached from his train and with 
the engineer and other employees started to examine 



employment when instruoted to 
aadBt in raising a loaded oar in the 
3rard for the purpose of repairs. 
MoClure v. Detroit Southern R. 
Co.. 146 Mich. 467. 109 N. W. 847. 

Employee btringinq wire fob 
ELBCTBic CALL BELL. An employee 
directed to string a wire for an eleo- 
trio call bell from a machine shop to 
a point outside, who has assisted 
in wiring the building for electric 
lights, and whose duty it is, among 
other things, to look after wires in 
lamps, cannot be said, in strinfi^ng 
the call bell wire, to be acting with- 
out the scope of his employment. 
Davis V. Port Huron, E. & T. Co., 
126 Mich. 429, 85 N. W. 1125. 

Employee in packing house 
DRiTiNa HOOB T7P CHUTE. Where a 
boy fourteen years of age was 
called from his regular work in a 
packing house (what his duties were 
the case does not disclose) to assist 
in* driving hogs up a chute, being 
furnished with a whip lash, the 
ordinary implement for such pur- 
pose, and he was killed by the whip 
lash, which was fastened about his 
wrist, being caught on a revolving 
shaft of which he had no knowl- 
edge, it seems that it must have 
been held that the act was either 
within or incidental to his employ- 
ment, though such question is not 
referred to, it being held the risk 
was not assumed. CaUoway v. Agar 
Packing Co., 129 la. 1, 104 N. W. 
721. 



Employee using old instead 
OF NEW PLATFORM. Where the 
master had furnished a safe plat- 
form from which to oil machinery, 
but the plank which theretofore 
had been used for such purpose 
was, notwithstanding the new ap- 
pliances, sometimes used for such 
purpose by employees, and was 
safe if properly nailed down, and an 
employee, in stepping upon the 
same, was thrown and injured by 
reason of one end being loose, the 
question of the master's negligence 
and of the scope of employment of 
the plaintiff, were questions for 
the jury. Namyst v. Batz, 85 
Minn. 366, 88 N. W. 991. 

Employee directed to look 
AFTER CERTAIN BELTS. Where a 
servant employed by the day to 
perform certain work, was directed 
by his foreman to look after certain 
belts located near his place of work, 
and was injured by the breaking of 
one of the belts, it was held that he 
was, when injured, within the 
scope of his employment, and not a 
volunteer. Mathew v. Kerlin, 122 
La. 606, 48 So. 123. 

Employee usual duties secur- 
ing STERN LINE, DIRECTED TO SE- 
CURE BOW LINE ON VESSEL. Where 
a cook upon a tug, though only 
nineteen years of age, but an experi- 
enced hand, was ordered by the 
owner and master of the tug to 
secure the line upon the bow of the 
boat, which was more dangerous 



1990 



Masteb and Sbbvant. 



§741 



them, and was killed by the giving away of a trestle be- 
tween the two, as to which he had not been infonned there 
was any danger. The act was one necessary to the safety 
of his train.*^ 

It was held that the duties of a freight conductor 
include, in case of an emergency, the coupling of cars/' 



thAn seouring it to the stem in the 
fact only that the strain was 
greater, and his usual duties in- 
cluded the seouring of the stem 
line, though it was part of his duties 
to work on the deck generally, it 
was held that the master had a right 
to send him to the bow line, and 
that any dangers necessarily and 
universally incident to handling it 
were within the risks which plain- 
tiff assumed. Williams v. Churchill, 
137 Mass. 243, 50 Am. Rep. 304. 

Employee on tback generally. 
Where a person is employed to la- 
bor on the track of a railroad com- 
pany, generally, it will be pre- 
sumed that it shall be at any place 
the company shall designate within 
a reasonable distance from the pUu)e 
of employment, and the company 
should not for that reason be liable 
for an injury received while at work 
at a place different from that at 
which he had been accustomed 
to work. Pittsburg, Ft. W. & C. R. 
Co. V. Powers, 74 111. 341. 

Employee in shipping dbpart- 

liENT OF factory SAWING CRATE 

MATERIAL. An employee in the 
shipping department, was held to 
be within the scope of his employ- 
ment where he engaged in sawing 
orate material, and was injured 
from contact with a revolving 
shaft. He had been operating such 
saw for several days and without 



complaint. Hertel v. Safety Fold- 
ing Bed Co., 149 Mich. 223, 114 
N. W. 712. 

Fireman uncottplinq cars. 
Where a fireman in the employ of 
the defendant was killed while 
attempting to uncouple cars, and 
the cause of death was alleged to be 
an insufficient number of servants, 
and the only proof of his being 
ordered to do such work was that 
of the engineer, who sometimes 
acted as conductor, to the effect 
that on some occasions he had 
directed him to uncouple cars, but 
could not recollect as to the time 
in question, it was said that unless 
the evidence shows that he was 
ordered to leave his pUu)e as fire- 
man and engaged in the other more 
dangerous work of uncoupling cars, 
the question whether a sufficient 
number of hands were present is 
not material; and having failed to 
show this, there can be no recov- 
ery, since the injuries could not 
have happened if he had continued 
to perform his duties as fireman 
and not gone into a place of danger 
not within the scope of his employ- 
ment. Shugart's Admz. v. Nor- 
folk & W. R. Co., 22 S. E. (Va.) 
484. 

61. Terre Haute & I. R. Co. v. 
Fowler, 154 Ind. 682, 56 N. E. 228. 

62. Deley v. Southern Pac. R. 
Co., 6 Utah 319, 23 Pac. 751. 



§ 742 AoTs OuTsiDB Scope of Employment. 1991 

§ 742. Servant not actually at work. 

This particulajr branch of the subject has been con- 
sidered in a former volume as to whether the injured per- 
son was at such time a servant. It was so considered 
imder that head for the reason that the coiurts so classified 
it. In other cases the question of the master's liability is 
made to dei)end ui>on whether at such time the servant 
was within or without the scope of his employment, evi- 
dently being considered an employee. For these reasons 
the latter class of cases are considered under this particular 
subject. 

The rule is that where an employee is injured when in 
a place he has no right to be, or leaves his employment 
temporarily for some private purpose, and not his master's 
business, he is not within the line of his duty at such time 
and if injury comes to him, he cannot charge the master 
with resi>onsibility. Thus, a miner who leaves his place of 
work and goes into another place in the mine to get some 
tools he had loaned to another employee, and is injured 
by falling slate, cannot recover.*' 

So where he goes to a different place in the mine from 
that where his regular duties require, for the purpose of 
visiting the occupants there, and is injured by the giving 
way of the roof, caused by age and the insufficiency of 
props ;*^ and it is immaterial that it was the custom of 
miners to visit their feUow-workmen, and that the 
employer acquiesced in such custom/^ 

But a fireman injured by the bursting of a hot water 
tank near which he was washing his overalls and jumper 
was held to be acting in the scope of his employment when 
injured. •• 

63. Pioneer Min. Co. v. Talley, 119, 51 L. R. A. 389; same case, 
152 Ala. 162, 43 So. 800, 12 L. R. A. 110 Fed. 119. 

61, n. 8. 65. Wright v. Rawson, 52 la. 

64. Wright v. Rawson, 52 la. 329, 3 N. W. 106, 35 Am. Rep. 275. 
329, 3 N. W. 106, 35 Am. Rep. 275; 66. MuUer v. Cakes Mfg Co., 
EUsworth y. Menthany, 104 Fed. 113 App. Div. 689, 99 N. T. Supp. 

923. 



1992 Masteb and Servant. ^743 

An employee upon a lighter from which a vessel is being 
loaded, whose work was to shovel ballast from the deok of 
the lighter onto a staging outside the vessel, who upon his 
own account goes upon the deck of the vessel and is there 
injured by falling into a hatchway, was outside his em- 
plojonent and the master owed him no duty of protection.*^ 

So an employee riding upon an elevator of his employer, 
merely for his own convenience or pleasure, cannot 
recover.** 

§ 743. After working hours. 

It has been held, as stated in a preceding chapter, that 
an employee after finishing his day's work, in going to a 
closet for his clothes, is to be considered, at such time, in 
the emplojonent.** 

The case, however, was quite different where a brake- 
man had changed his clothes after an incoming trip, and 
subsequently went upon the caboose in search of his 
clothing, and was injured while jumping therefrom, 
caused by an alleged defective switch stand. Under such 
circumstances, it is clear, he was not engaged in the line 
of his employment. ^*^ 

It was held, however, that a servant of a stevedore who 
goes into the hold of a ship after his coat, after the loading 
is finished, is rightfully there, and entitled to the same 
reasonable care on the part of the officers to not expose him 
to danger as when at actual work.^^ 

The opening ot a ventilator, as commanded by a fore- 
man, during the noon recess, has been held within the 
scope of the employment of a common laborer.^* 

Workmen, while descending from their place of work on 

67. Kennedy v. Chase, 119 70. Olson v. Minneapolis & St. 
Cal. 637, 52 Pao. 33, 63 Am. St. L. R. Co., 76 Minn. 149, 78 N. W. 
Rep. 153. 975, 48 L. R. A. 796. 

68. O'Brien v. Western Steel 71. Bodin v. Demwold, 56 Fed. 
Co., 100 Mo. 182, 13 S. W. 402. 846. 

69. Helmke v. Thilmany, 107 72. Broderick v. Detroit Union 
Wis. 216, 83 N. W. 36. See also Depot Co., 56 Mich. 261, 22 N. W. 
supra — . 802, 56 Am. Rep. 382. 



§ 744 Acts Outside Scope of Employment. 1993 

top of a building, at the noon hour, it was held, were 
within the line of their employment.^* 

But where an employee in a scourer in a carpet mill 
voluntarily undertook after hours to help run a line of hot 
water pipe over a vat of boiling caustic soda, standing 
upon a plank which sUpped, throwing him into the vat, 
it was held the master was not liable. ^^ 

§ 744. Going to and from place of work. 

An employee, while going from his place of work at 
night to a near by town for lodging, at the direction of the 
employer who is to furnish it, was held to have been with- 
in the scope of his employment, so as to render the em- 
ployer liable for injuries sustained by fallmg into a deep 
hole dug by the master in the field which the servant 
was crossing.^** 

But it was held by the Minnesota comrt that workmen 
engaged in repairing a track, while going from their place 
of work to boarding cars, ui)on hand cars ftunished by the 
company at their request and for such use, injured by a 
collision of such cars, were not, within the meaning of the 
statute, at such time engaged in the discharge of their 
duties under their employment.^* 

However, it was subsequently held that one of a 
bridge gang, while riding upon a hand car to his place of 
work, and injured in the same manner as above stated, 
by a collision of hand cars, was engaged in his duties as 
an employee, within the statute. ^^ 

The court distinguishes the latter case from the former 
in that in the former the defendant had no control over 
the men at that time and had not undertaken to transport 
them, and in no sense were they acting in the performance 

73. Boyle ▼. Ck>luinbiaii Fire- 52 N. E. 471. See also sapra — . 
proofing Ck>., 182 Mass. 93,64 N.E. 76. Benson v. Chioago, St. P. 
726. & O. R. Co., 78 Minn. 303, 80 N. 

74. Durst V. Bromley Bros. W. 1060. 

Carpet Co., 208 Pa. St. 573, 57 77. Wallin v. Eastern R. Co., 

Ati. 086. 83 Minn. 149, 86 N. W. 76, 54 L. 

75. Indiana Pipe L. & R. Co. R. A. 481. 
V. Nensbatun, 21 Ind. App. 361, 



1994 Master and Sbbvakt. §^745, 746 

of their duties, while in the latter case it was assumed from 
the pleadings that the employment of the men com- 
menced each day when they started to go upon the road 
until they returned, and that defendant agreed to trans- 
port them to and from their place of work. 

§ 745. While resting. 

An employee, who, under the master's rules, may take 
a turn at resting, is at such time within the scope of his 
employment, and may use his discretion in selecting a 
place to rest, but may not needlessly wander from the 
proper sphere of his work into other departments, and if, 
while in a proper place, he is injured by a set screw, not 
guarded as required by the statuta, the master will be 
liable.^8 

An employee, while eating his lunch in a place per- 
mitted by the employer, was held to have been in the 
employment though he is working by the hour.^ 

Where an employee, after having laced a belt, had 
finished that work, and then, without placing it on the 
pulley, merely idled with it, and thus received an injury, 
it was held the master was not liable for an injury caused 
by the employee assuming an imnecessary risk, received 
when not engaged in the discharge of any duty assigned 
to him. "^ 

§ 746. Momentarily engaged in conversation. 

The mere fact that an employee, when injured, was 
talking to a fellow-workman about the operation of the 
naachine in the mill, having stopped for a moment while 
passing along a public passage way in the mill, did not 
place him beyond the soope of his emplojonent. A belt 
broke injuring him where he stood eight feet from it.^^ 

78. Pittsburg Vitrified Pao. & 79. Heldmaier ▼. Cobbs, 196 
Bldg. Briok Co. v. Fisher, 79 Kan. lU. 172, 62 N. E. 853. 
571, 100 Pao. 507; Jaoobson v. Mer- 80. Ball v. Vicksburg, S. & P. 
rill Ruts. Co., 107 Minn. 74, 119 R. Ck>., 123 La 7, 48 So. 565. 
N. W. 510, 22 L. R. A. 309. 81. Moore v. W. R. Pickering 

Lbr. Ck>., 105 La. 504, 29 So. 990. 



§ 747 Acts Outside Scope op Employment. 1995 

§ 747. Servant working in different manner. 

The master has a right to expect, when he furnishes an 
appliance not defective, that a servant who has experi- 
ence, or has been properly instructed as to the manner of 
its use, will use it in such manner, and if he uses it in an 
improper or unsafe maimer, whereby injury comes to 
him, he will have no cause for complaiat, and if injury 
comes to others from such improper use, the master will 
not be liable from the fact alone, unless the person injured 
is one to which he owes a positive duty. The neghgence of 
such an employee is ordinarily that of a fellow-servant and ^ 
a risk assumed. In such a case, the question of scope of 
emplosonent is not iavolved, it being within the em- 
ployment to operate the machiae or appUance. When, 
however, the appliance is used for a different purpose 
than that designed, it might be said that the servant was 
acting oustide the line of his emplojonent.^^ 

And where he is authorized to pursue a certain course 
or adopt a line of action other than the operation of an 
appliance, and he adopts that which is other than within 
his authority, it may be said he is acting outside the line 
of his duty, as where a lineman, employed by a telegraph 
company, chose a different way to reach a building than the 
way for which he had a license, and was injured while thus 
ui>on an adjoining building by contact with an uninsu- 
lated wire, it was held that he was not acting within the 
scope of his license, and therefore could not recover.** 

It cannot be said, however, that mere deviation from 
the prescribed method, has the effect to make the act out 
of the line of duty, where it in no manner affected the 
cause of injury, as where a hostler taking charge of an 
engine to take it to the round house, before doing so, ran 
out some distance on the main track to take the yard 
master to dinner, it did not have the effect, after his 
return and while proceeding to the round house, to render 

82. Wolff V. Walter A. Wood 83. Hector v. Boston Eleotrio 
Harv. Maoh. Ck>., 67 Minn. 423, light Co., 161 Mass. 588, 37 N. E. 
70 N. W. 166. 773. 



1996 



Masteb and Sebvant. 



§§ 748, 749 



the duty he was chai^fed to do, to make it a duty outside 
of the scope of his emplojonent.** 

An act is not necessarily outside the scope of the duties 
of a servant, it is held, because in violation of the rules of 
the master.*** 

§ 748. Servant as within scope when acting pursuant to 
orders and vice versa when not. 

A member of one section gang, ordered by his foreman 
to assist another gang, is, while so engaged, within the 
scope of his employment. Where, however, such employee 
voluntarily and without orders from his foreman, is 
engaged in assisting another gang he is not within the 
scope of his employment.** 

III. Acts outside scope of duty, not puksuant to 

OBDERS. 

§ 749. General rule. 

The general rale is that if a servant is injured while 
performing work not within the scope of his employment, 
and which he was not ordered to do, or while acting in any 
way outside the scope of his emplosonent, the master is 
not liable.*^ 



84. Jensen v. Omaha & St. 
L. R. Co., 116 la. 404, 88 N. W. 
952. 

85. Masterson v. Galveston, H. 
& S. A. R. Co., 42 S. W. (Tex. 
Civ. App.) 1001. 

86. Southern Ry. Co. v. Guy- 
ton, 122 Ala. 231, 25 So. 34. 

87. Southern R. Co. v. Guy- 
ton, 122 Ala. 231, 25 So. 34; Ray v. 
Diamond State Steel Co., 2 Pennew. 
(Del) 525, 47 Atl. 1017; Central R. 
& Banking Co. v. Chapman, 96 
Ga. 769, 22 S. £. 273; Sears v. 
Central R. & Banking Co., 53 
Ga. 630; Chicago & A. S. & R. Co. 
V. Collins, 43 lU. App. 478; Mit- 
ohell-Tranter Co. v. Emmett, 23 



Ky. L. Rep. 1788, 65 S. W. 835 
55 L. R. A. 710; Lewis v. Coupe* 
200 Mass. 182, 85 N. W. 1053; 
Mellor V. Merchant's Mfg. Co., 150 
Mass. 362, 23 N. E. 100, 5 L. R. A. 
792; Freeberg v. St. Paul Plow 
Works, 48 Minn. 99, 50 N. W. 1026; 
Stagg V. Edward Weston Tea & 
Spioe Co., 169 Mo. 489, 69 S. W. 
391; Cowhill v. Roberts, 71 Hun 
(N. Y.) 127, 24 N. Y. Supp. 533; 
Durst V. Bromley Bros. Carpet 
Co., 208 Pa. St. 573, 57 Atl. 986; 
St. Louis Southwestern R. Co. of 
Texas v. Spivey, 97 Tex. 143, 76 
S. W. 748; Eokles' Adm'x v. Nor- 
folk & W. R. Co., 96 Va. 69, 25 
S. E. 545; Johnson v. Armour, 



§749 



Acts Outsidb Scope of Employment. 



1997 



18 Fed. 490. It was said (the facts 
not h&ng given), it plainly appear- 
ing from the plaintiff's own testi- 
mony as a witness, that he volun- 
tarily and without being so ordered 
by any superior, undertook to 
oi)erate a dangerous machine with 
which he was unfamiliar, and that 
it was entirely outside the scope of 
his regular employment so to do, 
and there being no emergency which 
would justify a departure by him 
from the ordinary line of duty, he 
was not entitled to recover from 
his master, the defendant, for in- 
juries thus occasioned, although in 
point of fact the machine was at 
the time in a defective condition. 
Central R. & B. Co. v. Chapman, 
96 Ga. 769, 22 S. E. 273. Recov- 
ery was denied a boy of thirteen 
years who was injured while trying 
to remove an obstruction from a 
machine while in motion, it being 
no part of his duties. Michalofski 
V. Pittsburg Screw & Bolt Co., 
213 Pa. St. 563, 62 Atl. 1112. 

Bbakbman bwitchinq in yard. 
Where a brakeman upon a pas- 
senger train was directed, with the 
train crew, to do switching in the 
oomi>any's yard, and he complied 
with such directions and performed 
such duties while at such station 
for two months, when he was in- 
jured while in the act of coupling 
cars, one of which was loaded with 
lumber projecting over the end of 
the car, it was held he could not 
recover from the company upon the 
ground that the services was be- 
yond the scope of his employment, 
and therefore the risk was not 
assumed. Jones v. L. 8. & M. S. R. 
Co., 49 Mich. 673, 14 N. W. 661. 

Elevator* operating by . one 
NOT 80 EMPiiOYBD. A boy em- 



ployed to operate an elevator has 
no authority to transfer its opera- 
tion to another, such for instance, 
a painter, who is painting the ele- 
vator shaft, and hence if such other 
is injured while running the ele- 
vator, the employer will not be 
liable. Arzt v. Lit, 198 Pa. St. 619, 
48 Atl. 297. 

Conductor xjncouplinq cars. 
Where a freight conductor was 
injured while uncoupling cars, 
which was no part of his duty, and 
was contrary to the defendant's 
rules, and there was no pressing 
emergency for him to perform this 
duty at the time, it was held it was 
not error to grant a new trial when a 
verdict was found for the plaintiff. 
Kane v. Savannah, F. & W. R. Co., 
86 Ga. 868, 11 S. E. 493. 

Repairing roof. An employee 
injured while performing work on 
the roof of his employer's mill, 
which was not within the scope of 
his employment, was held a mere 
volunteer and could not recover. 
Emmett v. Mitchell Tranter Co., 
26 Ky. L. Rep. 303, 80 S. W. 1148; 
Emmett v. Mitchell Tranter Co., 
23 Ky. L. Rep. 1788, 66 S. W. 836, 
60 L. R. A. 710. 

Leaving safe position to 
STOP RUNAWAY CAR. Where a serv- 
ant left his place of safety volun- 
tarily, and without direction, to 
stop a runaway car, and was in- 
jured by a second runaway car, 
having no duty to perform about 
such car or its operation, and there 
was no evidence that the master 
could have prevented the injury 
after the car was in motion, the 
master was not liable although such 
car ran away because of a defective 
brake, since the proximate cause of 
the injury was the servant's volun- 



1998 



Master and Sbbvakt. 



§749 



And fhis rule ordinarily appUee equally well where the 
injured servant is a minor."" 



Baggage man taking and delivering message. 

The taking and delivering of a message addressed to 
one of a section crew by a baggage man on a train, to be 
thrown off to him, was not within the scope of employ- 
ment of such baggage man, and where he was killed by 
contact with a rod, while leaning out of the door of the 
car to throw off the message, the master was not liable."* 

Forbidden act. 

Where an employee was killed in using a cage at the 
bottom of a mine, contrary to express orders not to do so, 
no recovery could be had against the master; and evidence 
of an alleged custom of employees to use the cage was held 
inadmissible.^ 



taiy act. MoGill v. Maine & N. H. 
Granite Co., 70 N. Hamp. 125, 
46 Atl. 684, 85 Am. St. Rep. 618. 

Station bmplotxb acting ab 
BRAKBMAN. An employee at a 
station, voluntarily acting as a 
baggageman on an ezoursion train, 
upon which he was a passenger, 
injured by a defective handhold on 
the car, was not injured within the 
scope of his employment, and the 
company was not liable. Wagen 
V. Minneapolis & St. L. R. Co., 80 
Minn. 92, 82 N. W. 1107. ' ^ 

Train dibpatchbr crossing 
TRACKS. A railroad company owes 
no duty to unauthorized persons in 
its switch yards except ordinary 
care to avoid injury to them after 
their peril is discovered. The rule 
applied to a train dispatcher in 
crossing tracks at a place where not 
authorized. Louisville & N. R. Co. 
V. Hocker, 23 Ky. L. Rep. 982, 64 
S. W. 638. 

88. See Hyde v. Mendel, 75 
Conn. 140, 52 AtJ. 744; Daly v. H. 



Haller Mfg. Co., 48 La. Ann. 214. 
19 So. 116; Michael v. Henry, 209 
Pa. St. 213, 58 Atl. 125. Where a 
boy fourteen years of age was as- 
signed to work at a trimming ma- 
chine operated by another boy, and 
his duties were not in connection 
with the operation of the machine, 
but in connection with the material 
used, and he voluntarily, when 
something stopped the machine 
and the operator ran away, at- 
tempted to pull a cap out of the ma- 
chine, and while making such effort 
the machine suddenly started and 
caught his hand, it was held there 
was no neglect on the part of the 
master which caused the injury, 
and therefore he could not recover. 
Gillen v. Rowley, 134 Pa. St. 209, 
19 Atl. 504. 

89. McTaggart v. Maine Cent. 
R. Co., 100 Me. 223, 60 Atl. 1027. 

90. Contri V. Hollingsworth 
Coal Co., 143 Iowa, 115, 121 N. W. 
506.' 



§ 749 Acts Outsidb Soopb op Employment. 1999 

So where an employer clearly and explicitly forbids his 
employee to do a certain act around or in connection with 
the machine on which he is working, and the employee, 
while violating such prohibition, and as a result thereof, 
receives an injury, he cannot hold the master responsible. 
This rule applies to a minor as well as an adult.'^ 

And where an employee attempted to couple cars, 
which was not a duty he was required to perform, and he 
had been expressly directed not to attempt so to do, it was 
held that he had no ground for recovery against the master 
for injuries received in attempting to perform such act.** 

Freight conductor coupling cars. 

It is not the duty of a freight conductor to couple and 
uncouple cars except in the case of a pressing emergency, 
of which the jury must judge. If one such is killed whUe 
performing such service, in the absence of such emergency, 
he is not without fault, and his widow cannot recover 
damages from the company.** 

Upon a subsequent appeal, when the lateness of the 
train was relied upon as being a sufficient emergency to 
justify the act, it was held that the plaiatiff must affirma- 
tively show that the emei^ency which justified the act was 
not due to the fault of such conductor.'^ 



Repairs, making where not a duty. 

Where an employee in a mill undertakes of his own free 
will to make repairs, outside of his regular duty, on a 
defective pulley and belt, upon the sug^:estion of a fellow- 
workman who had no authority over him, and with the 
mere consent of his own immediate superior, and he 
buQt a staging, and just before the time for stopping the 
machinery for the day, while standing with his arm on 

91. This rale applied where a Ck>., 58 Mioh. 584, 26 N. W. 301. 
minor had been forbidden to re- 93. Sears v. Central R. & B. 
move a substance from the rollers Co., 53 Ga. 630; Central R. & 
of a machine while in motion. B. Co. v. Sears, 59 Ga. 436. 

Card V. Wilkins, 61 N. J. L. 296, 94. Central R. & B. Co. v. 
39 Atl. 676. Sears, 61 Ga. 279. 

92. Gardner v. Mioh. Cent. R. 
3 M. ft 8.'-~2 



2000 Masteb and Sebyant. ^750 

the staging, facing the belt and close to it, waiting for it to 
stop, the belt came off, caught his arm and caused him 
injury, it was held that he voluntarily took the risk of 
aD obvious danger and could not recover under the 
statute, although he was in the exercise of great care.*^ 

§ 750. Servant working in different place. 

The duty of the master to furnish his servant with a 
reasonably safe place in which to work, is limited to the 
premises where he is required to be for the performance of 
his work.** 

Where one amployed to do a designated kind of work or 
to work in a designated place, voluntarily goes to a dif- 
ferent place from that assigned him, he precludes himself 
from insisting that the master must exercise ordinary care 
to protect him from injury.*^ 

Engine hostler going ahead of engine. 

The rule was appUed where an engine hostler, while 
going ahead of his engine to open a switch, was injured 
in stepping into a trench, his place of duty being upon the 
engine, such engine being operated by a fellow-hostler 
at his request.** 

Scrub woman going into dark room for material. 

And where a servant engaged in scrubbing offices went 
into a dark room where her employment did not call her, 
in search of materials to do her work, and fell down an 
elevator shaft, it being her duty to call the watchman who 
would furnish the materials, she could not recover.** 

Employee leaving place of work to adjust a belt. 

And where a boy fourteen years old, employed in a tin- 
ware factory to operate a small foot machine, voluntarily 

95. Mellor v. Merohants' Mfg. Lang v. Kansas City Bolt & Nut 
Ck>., 150 Mass. 362, 23 N. E. 100, Co., 131 Mo. App. 146, 110 S. W. 
5 L. R. A. 792. 614. 

96. Kennedy v. Chase, 119 Cal. 98. Baltimore & Ohio R. Co. 
637, 52 Pao. 33, 65 Am. St. Rep. v. Doty, 133 Fed. 866. 

153. See also supra — 99. Jorgenson v. Johnson Chair 

97. Green v. Brainard & N. M. Co., 169 m. 429, 48 N. E. 822. 
R. Co., 86 Minn. 318, 88 N. W. 974: 



§ 751 Acts Outside Scope of Employment. 2001 

left his place and went to another part of the establish- 
ment to adjust a belt, and while thus engaged received fatal 
injuries, it was held, in an action brought by his parent 
against his employer, that there could be no recovery, it 
not appearing that any such duty was imposed upon him 
by the defendant's servants or agents, though it did appear 
that he had voluntarily performed the act on other occa- 
sions, which was known to or sanctioned by the defend- 
ant's superintendent or foreman. ^^ 



velocipede on track. 

And where an employee of a railroad company, required 
to work other than upon the raiboad proper, was injured 
while riding a velocipede upon the track, though without 
objection from the company, it was held he was a tres- 
passer. If he obtained the consent of the company, which 
was granted at his risk, he cannot recover for injuries 
received through the ordinary neg'ligence of trainmen, 
but only in case of wilful negligence. ^^* 

§ 751. Acts in emergencies. 

In the chapter on contributory negligence, the rule has 
been stated that an act which would be contributory neg- 
ligence on the part of the injured servant may be other- - 
wise because of the existence of an emergency.*®^ 

So, risking life to save life is often excused because of 
the existence of an emergency.*®' 

However, where a person goes outside the scope of his 
employment to save life, he cannot recover where the 
master was in no ways negligent.*®* 

And attempting to protect the master's property from 
destruction by fire, where the risks are obvious, imposes 
no liability on the master.*®* 

100. Daly v. Manufaoturing 104. Saylor v. Parsons, 122 la. 
Ck).. 48 La. Ann. 214, 19 So. 116. 679, 98 N. W. 600, 64 L. R. A. 52, 

101. Craig v. Mount Carbon and cases cited. 

Co., 45 Fed. 488. 105. Mattbie v. Belden, 167 

102. See supra, { 496. N. Y. 307, 60 N. E. 345, 54 L. R. A. 

103. See supra, { 500. 52. 



2002 



Masteb akd Sebvant. 



§751 



However, where an emergency exists, it would seem 
that the common sense rule should protect a servant who 
renders assistance although not within the scope of his 
duties. w« 

And it has been held that while as a general rule the 
servant has no claim for damages for injury received 
while voluntarily assuming to do something which the 
master did not employ him to do, yet, in case of emer- 
gency, he may of his own volition step outside of the line 
of his usual duties, and if this departure is only such as 
the necessities of the case fairly and reasonably call for, 
keeping in view the character of the work he is required 
to do, it will not of itself defeat a recovery of damages in 
case he is injured. Whether he is guilty of negligenca is a 
question for the jury, and his conduct must be tried in the 
light of all the surroundings. Hence it was held that an 
engineer who left his engine in charge of the fireman, in 
violation of the rules of the company, and stepped on the 
main track and signaled the fireman to move his train on 
the sidetrack, and while thus engaged was run over and 
killed by a hand car in charge of section men, that he was 
not so without the scoi)e of his emplosonent, or negligent. 



106. See Mullin v. Northern 
Mm Co., 63 Minn. 29, 66 N. W. 
1116; Carroll v. East Tennessee R. 
Co., 82 Ga. 462, 10 S. E. 163, 6 
L. R. A. 214. Where a mechanio in 
a saw mill, whose general duty it 
was to assist in making repairs, was 
directed by the operator of an appli- 
ance and machine to replace a 
chain which had fallen from its 
place on a wheel, and he was in- 
jured by contact with the un- 
guarded knives of such machine, and 
it appeared the mill wright and fore- 
man were not present, whose du- 
ties were in connection with the 
directing and adjustment of ma- 
chinery, and that unless the chain 



was adjusted the mill would have 
been idle during their absence, it 
was said that, under such droum- 
stanoes, to prevent a suspension of 
the work in the mill, the rule ought 
to apply which would authorize the 
operator of the machine to call for 
assistance upon any of the em- 
ployees whose business it was to 
assist in making repairs. It was held 
that the evidence was sufficient to 
sustain a finding that he was prop- 
erly engaged as a servant of defend- 
ant in the course of his employment 
when the accident occurred. Mul- 
len V. Northern Mills Co., 63 
Minn. 29, 66 N. W. 1116. 



^^ 752, 753 Acts Outside Scofb of Employment. 2003 

but that his representatives could recover from the master 
damages for his death. ^^^ 

§ 752. E£Fect of custom. 

Where a servant is injured while performing an act 
wholly outside the scope of his duties, evidence of a custom 
of employees to do such act has been held inadmissible. ^^^ 

However, it would seem that where the act is closely 
connected with the duty, even if not strictly within the 
scope of the employment, the fact that such act had been 
previously done by the injured servant, to the knowledge 
of the foreman in charge of the work, without objection, 
tends to prove the act was authorized, although the 
practice does not amoimt to a general custom. ^^ 

IV. Obedience to ordeb to pebfobm wobk Joutside 

SCOPE OF employment. 

§ 753. In general. 

In some early cases, there is language which would 
seem to promulgate a rule that the mere fact that one 
servant has authority over another, and orders the 
subordinate to do an act not within the scope of his em- 
plo3rment, whereby he is exposed to danger not contem- 
plated by his contract of service, and he is injured in so 
doing, renders the master liable. ^^ 



107. Barry v. H. & St. J. R. 
Co., gS Mo. 62, 11 S. W. 308, 14 
Am. St. Rep. 43. 

108. Texas, M. R. R. v. Taylor, 
44 8. W. (Tex. Civ. App.) 802. 

100. Morbey v. Chicago & N. 
W. R. Co., 105 la. 46, 74 N. W. 
761. 

110. Gflmore v. Northern Pao. 
R. Co., 18 Fed. 866; Thompson v. 
Chieago, M. & St. P. R. Co., 14 
Fed. 564; Linderberg v. Cresoent 
Min. Co., 9 Utah, 163, 33 Pao. 
602; Chieago & G. E. R. Co. v. 
Ham^, 28 Ind. 28. Where a fire- 



man employed to tend an engine 
fire was called upon by the engineer 
to assist him in throwing on a belt, 
and was injured while making the 
effort, it was said that if the fireman 
employed as such was placed under 
the orders of the engineer, and was 
by him suddenly called upon to 
assist in throwing on a belt, outside 
of his sphere, but within the sphere 
of duty of the engineer, and was 
thus subjected to a risk with which 
he was not acquainted, or to a 
particular or greater risk at that 
time, and of which he was not in- 



2004 



Master and Sebvant* 



§§ 754, 755 



However, in no well considered case is it held that the 
mere fact that the master or his representative orders 
a servant into more dangerous work, outside the scope of 
his employment, is of itself, negligence, so as to naake the 
master liable where the servant is injured while engaged 
in such work. The rule is that where the servant volun- 
tarily and without objection consents to perform such 
new service, and he is not subjected to latent or hidden 
dangers, negligence on the part of the employer cannot be 
predicated upon the ground that he was directed to per- 
form a service outside his regular employment/" except 
possibly in the case of minor servants under certain 
circumstances. ^ ^ * 

§ 754. Acting outside scope as defense. 

It is no defense to an action for personal injuries that 
the injured servant, at the time of the injury, was acting 
outside the scope of his employment, where pursuant to 
the orders of the noaster or his authorized representa- 
tive."' 

§ 755. Authority of servant giving command. 

If the servant giving the order to perform work outside 
of the scope qt the employment of the injured servant, 
had no authority to do so, the master is not liable."* 



formed or cautioned, the master 
will be liable. Mann v. Oriental 
Printing Works, 11 R. I. 152. 

111. Wormell v. Maine Cent. 
R. Co., 79 Me. 397, 10 Atl. 49, 1 
Am. St. Rep. 321; Hanrathy v. 
Northern Cent. R. Co., 46 Md. 280; 
Cole V. Chicago & N. W. R. Co., 71 
Wis. 114, 37 N. W. 84, 5 Am. St. 
Rep. 201; Wheeler v. Berry, 95 
Mich. 250, 54 N. W. 876; Paule v. 
Florence Mining Co., 80 Wis. 350, 
50 N. W. 189; Hogan v. Northern 
Pac. R. Co., 53 Fed. 579. 

112. See infra, §757. 

113. Krueger v. Bartholomay 



Brewing Co., 94 App. Div. 58, 
87 N. Y. Supp. 1054. 

114. Pittsburg, C. & St. L. R. 
Co. V. Adams, 105 Ind. 151, 5 
N. E. 187; NashviUe & C. R. Co. v. 
McDaniel, 80 Tenn. 386; Watts v. 
Hart, 7 Wash. 178, 34 Pac. 423; 
Walker v. Lake Shore & M. S. 
R. Co., 104 Mich. 606, 62 N. W. 
1032; Kopf V. Monroe Stone Co., 
133 Mich. 286. 95 N. W. 72; Parent 
V. Nashua Mfg. Co., 70 N. H. 199, 
47 Atl. 261 ; Texasifc N. 0. R. Co. v. 
Skinner, 4 Tex. Civ. App. 661, 23 
S. W. 1001. See also Martin v. 
Highland Park Mfg. Co., 128 N. 



^755 



Acts Outsidb Scope op Employment. 



2005 



Obedience to direction of foreman to perform an act 
outside of working hours. 

Where a workman was called upon by the foreman 
dming the noon hour to open a ventilator, and he was 
injured, and it appeared he had before refused to do any 
work outside of his reg^ular duties at such foreman's 
request, but had been told by the foreman in charge of the 
elevator to do what such foreman called ui)on him to do, 
it was said that whatever a workman does, under compe- 
tent authority, for the comfort and convenience of his 
fellow workmen, is presimied to be for his employer's bene- 



C. 264, 38 S. E. 876, 83 Am. St. 
Rep. 671. But see Chicago & N. 
W. R. Co. V. Bayfield, 37 Mich. 
205. While the work on a building 
undertaken by several men under 
the direction and control of a fore- 
man, was suspended temporarily to 
permit the unloading pai)er rolls 
from a van and rolling them into 
the basement of the building, and 
such men were directed by such 
foreman to assist in unloading the 
paper rolls, it was held the master 
was not liable for their acts while 
so engaged. Brown v. Jarvis Eng. 
Co., 166 Mass. 75, 55 Am. St. Rep. 
382. 

ASSIBTINO FELLOW-BBRVANT. A 

servant injured while absent from 
his place of duty assbting a mere 
fellow-«ervant in his work, upon 
the latter's call, is but a mere volun- 
teer and cannot recover of the mas- 
ter for his injuries. Werner v. 
Trautwein, 25 Tex. Civ. App. 608, 
61 8. W. 447. Where a servant em- 
ployed in defendant's coal mine, 
at the request of another servant, 
left the place where he was at 
work, to assist a fellow-servant in 
propping the mine, and while so 
engaged was injured by falling 
slate, and it appeared that it was 



not his duty to prop the mine and 
that such fellow-servant had no 
control over him, it was said that if 
it was not his duty, and he was 
ordered to do it by one who was not 
authorized to command him, the 
company would not be liable. Knox 
V. Pioneer Coal Co., 90 Tenn. 546, 
18 S. W. 255. See also, as sustain- 
ing the principle, Railroad Co. v. 
McDaniel, 12 Lea 386; Bradley v. 
Railway Co., 14 Lea 374. Where 
the master of defendant's ferry 
boat, used to transport cars across 
the river, at the request of a con- 
ductor of one of defendant's trains, 
attempted to couple some cars and 
was injured, it was said that a 
person who voluntarily assists the 
servant of another in a particular 
emergency, cannot recover from 
the master for an injury caused by 
the negligence or misconduct of 
such servant; he can impose no 
greater duty on a master than a 
hired servant. The same rule is 
applicable if a servant, of his own 
motion, at the request of a fellow- 
servant, should undertake tem- 
porarily to perform the duties of a 
fellow-servant. Osborne v. Ejiox & 
Lincoln R. Co., 68 Me. 49. 



2006 Mastbb ajstd Sebvant. ^755 

fit, and if such work is not so foreign to his employment 
that he would be justified in refusing to do it, the fact that 
he was hurt outside of working hours will not affect the 
rule,"* 

Conductor inviting workmen to ride on his train. 

In the absence of evidence that a conductor was acting 
within the scope of his employment in stopping his train 
and inviting workmen to ride therein to their place of 
work, not being a train provided for the conveying of men 
to and from their place of work, the railroad company was 
not bound to use reasonable care to transport such an 
employee so riding on one of the cars, in safety. ^^* 

Conductor ordering a brakeman to couple cars. 

In ordering a braken[xan to couple the air brakes between 
cars, and assuring the brakeman that he would look out 
for him, but failing to notify him of the approach of a 
switching engine, a jury might properly infer that a 
conductor of a freight train or superintendent was acting 
within the scope of his employment, it being shown that 
it was the general practice of such superintendent to order 
his men to couple the hose between cars that had been 
coupled, although the train was not fully made up; 
that such general practice was known to the officials of the 
company and approved by them, though under the terms 
of his employment he had nothing to do with the train 
while it was being made up.^^^ 

Elevator operator inviting employee to ride thereon. 

An employee accepting the invitation of a co-employee 
operating a freight elevator to ride on the same, the latter 
acting without authority, assumes the risk; and the mere 
fact that on the first day the elevator was operated, a 
number of the employees did ride upon the same without 

115. Broderiok v. Detroit U. for R. Co. v. Sohiavons, 216 Dl. 
R. 8. & D. Co., 56 Mioh. 261, 275, 74 N. E. 1048. 

22 N. W. 802, 66 Am. Rep. 382. 117. Edgar v. New York, N. H. 

116. Chioago Tennina] Trans- & H. R. Co., 188 Mass. 420, 74 

N. E. 91L 



§ 755 Acts Outside Scope of EicpiiOYMBNT. 2007 

the knowledge or consent of the employer, does not estab- 
lish a custom or implied consent. ^^^ 

Employee requesting another to go in a place where 
her duties did not require her. 

A chambermaid, who, at the instance of a fellow- 
servant, went into an inclosure surrounding a glass floor, 
and it broke, causing her injury, it being no part of her 
duties to go there, could not charge the master with 
liabihty."* 

Employees riding on train by permission of trainmen. 
The presumption of law is that persons riding on con- 
struction trains and not employed in actual service there- 
on or in connection therewith, are not lawfully there, and 
if permitted to be there by the employees of the company 
the presumption is against their authority to bind the 
company. But this presumption may be overcome, as for 
instance when the company is in the habit of allowing its 
employees to ride on such trains to and from their work 
or their homes. **^ 

Employee calling assistance with acquiescence of 
overseer. 
Where an overseer of a room in a mill imposed upon a 
workman labor which it was impossible for him to perform 
without assistance, and knowingly acquiesced in his ob- 
taining assistance from such other workmen in the room 
as he chose to call, and the former, in good faith and for 
the purpose of performing such labor, though not in the 
exercise of good judgment, ordered a boy to assist him, who 
was unfit by reason of lack of instruction, and while ren- 
dering such assistance the latter was injured, it was held 
that the owner of the mill was liable. ^'^ 

118. Sierera v. Peters B. & L. 121. The facts were that a boy 
Co., 151 Ind. 642, 50 N. E. 877. fourteen years old was called to 

119. Ahem v. Mildreth, 183 assist in working upon a machine 
Mass. 296, 67 N. E. 328. and his hands became caught be- 

120. Roaenbaum v. St. Paul tween revolving rolls in plain sight. 
A D. R. Co., 38 Minn 173, 36 N. W. Patnode v. Warren Cotton Mills, 
447. 157 Mass. 283, 32 N. E. 161, 34 

Am. St. Rep. 275. 



2008 Masteb and Sebvakt. §755 

Employee calling a minor employee to assist in mend- 
ing a belt 

Where a boy thirteen years old was employed in a 
factory to sweep, cany water and fill buckets with quills, 
and he was ordered by another employee who had no con- 
trol over him (unless, as was assumed by the court, the 
absence of bosses in the room gave him such control) to 
assist him in mending a belt, and in so doing to occupy 
a dangerous position, and while so assisting the boy be- 
came caught in the revolving belts and was injured, it was 
held that the defendant was liable: (1) Upon the ground 
that by the act of its agent it exposed the boy to peril out- 
side the ordinary risk incident to his contract of service; 
(2) In the attempt to run the machinery with an insuffi- 
cient number of hands the occasion arose which con- 
tributed to produce, if it did not directly cause, the 
injury."* 

Foreman of one room directing employee under con- 
trol of foreman of another. 

Where a child twelve years old was employed by the 
foreman of defendant's boilershop to work in the tool 
room connected therewith, and was instructed to obey the 
boss of that roo^l, his work being that of cleaning tools, 
putting them in place, giving them to employees, and 
doing errands, and he was, at a time when there was no 
such work for him to do, sent by his boss into an adjoining 
room to work, and while there was directed by one of the 
employees of that room to assist in the working of a dan- 
gerous machine, which he did, and while so engaged was 
injured, and it appeared that the foreman of the boiler 
shop had full authority to hire and discharge hands, but 
that the boss of the boiler shop was merely authorized 
to direct the manner the work in that room was to be 
performed, and had no power to employ hands, it was 
held that the boss of the tool room had no authority to 

122. Jones v. Old Dominion 
Cotton Mills, 82 Va. 140, 3 Am. St. 
Rep. 92. 



§ 756 Acts Outside Scope op Employment. 2009 

direct the boy to seek employment in the boiler room, and 
the defendant therefore was not liable for his injuries. ^^' 

Loom fixer requesting assistance of weaver. 

Where a weaver was injured while assisting the loom 
fixer in repairing a loom, at the latter's request, there was 
no Uability on the part of the master where the loom fixer 
was without authority to put the plaintiff at any other 
work than weaving. ^^^ 

Section boss sending one of his crew to signal train 
after working hours. 

Where a section boss sent one of the section hands, 
after a day's labor, to signal passing trains of danger, and 
in some unexplained manner he was killed, it was held that 
the section boss was performing a proper and customary 
duty; that it had been customary for the section hands to 
render this service, as they were paid extra for it, and as it 
was evident that the deceased undertook it willingly he 
could not recover."^ 

Weaver assisting a belt adjuster. 

One employed as a weaver in a factory, who had nothing 
to do with the belts or machinery, injured while assisting 
another employee to adjust a belt, at the request of the 
latter, there being no evidence that he had any authority 
to permit or require the weaver to assist him, was held to 
have assmned the risk."* 

§ 756. Assumption of risks. 

Where a servant is ordered to do an act outside the 
scope of his employment, and obeys the order, the risk is 
not an ordinary one but an extraordinary one, and the 
assumption of the risk will generally depend on knowl- 
edge of the servant, actual or constructive."^ 

123. Fisk V. Central Pacific News & M. V. R. Co., 44 Ky. L. 
Co., 72 Cal. 39, 13 Pao. 144, 1 Am. Rep. 659, 20 S. W. 783. 

St. Rep. 22. 126. Parent v. Nashua Mfg. 

124. Martin v. Highland Park Co., 70 N. Hamp. 149, 47 Atl. 261. 
Mfg. Co., 128 N. Car. 264, 38 127. If one having authority 
8. E. 876, 83 Am. St. Rep. 671. over a servant directs him to do an 

125. Wadlington v. Newport act outside the scope of his em- 



2010 



Masteb and Sbbvant. 



§756 



The question often arises in cases where the servant is 
required to perform temporarily a dangerous service out- 
side of the duties which he was employed to perform, 
whether or not or to what extent he assumes the risk. It 
is argued that the risks attending such new service are not 
within the contract of employment and hence not an ordi- 
nary risk. It is generally conceded that such risks are not 



ployment, the servant in the per- 
formanoe of such outside work 
assumes the risk only if such danger 
is apparent. As said in Bailey's 
Master's Liability, p. 22: 'The 
same duty rests upon the master 
as to warning and instruction as to 
duties within the scope of the em- 
ployment, but as to temporary 
work outside of the employment, 
the same presumption does not 
apply, to wit, that he (the servant) 
is competent to pertorm the duties 
of the position which he seeks, and 
competent to apprehend and avoid 
all dangers that may be discovered 
by ordinary care. However, he is 
presumed to be competent to know 
and comprehend obvious dangers, 
which requires no skill or experi- 
ence to appreciate, or such obvi- 
ous dangers as the skill and experi- 
ence he may have ought reasonably 
to charge him with. If, therefore, 
a laborer who attempts to perform 
a hazardous service temporarily 
outside of his employment, at the 
request of the master, though not 
objecting, is injured while perform- 
ing such duty, his apparent consent 
alone will not defeat his right of 
recovery, though the danger is ap- 
parent to a person possessed of skill, 
but not to a common laborer.' " 
This was said where a railroad em- 
ployee, having been ordered by a 
superior to cut a trolley wire cross- 
ing defendant's tracks, mounted a 



step ladder placed on top of a car, 
and throwing his arm over the wire 
drew it down and cut it with a pair 
of nippers, the recoil throwing him 
to the ground and killing him. It 
appeared that trolley wires were 
new in the locality, and that de- 
ceased was wholly unskilled in the 
work; that the nippers were insulfi- 
cient alone for the safe performance 
of the duty, and deceased was given 
no warning except that he must 
hold the nippers loosely. The 
question whether the danger was 
apparent was held to be for the 
jury. Walker v. Lake Shore & M. 
8. R. Co., 104 Mich. 606, 62 N. W. 
1032. Where a blacksmith in the 
employ of the defendant was called 
upon to push cars upon a track and 
was injured by contact with a 
structure close to the track, it was 
said that if, under the circum- 
stances stated, he was called upon 
by the foreman to assist in this 
work, which was outside of the 
work he was employed to do, and 
in a place where he had not before 
done such work, and if the peril 
was not obvious to him, and he 
failed to notice that the space be- 
tween the car and the building was 
too narrow for him to pass through 
with safety, and his attention was so 
given to the work which he was 
doing that he did not discover the 
danger until it was too late to save 
himself, it could not be said, as 



$756 



Acts OuTsroB Scope of Ebcployment. 



2011 



ordinary risks but on the other hand it is held, in most 
jurisdictions, where the danger is obvious, that they come 
within the rule relating to obvious risks. This, however, 
is not conceded by some of the courts which seem to hold 
that even if obvious, the risk is not assumed, in the ab- 
sence of special inslaruction and warning. The liability 
upon the master in cases of injuries to a servant received 



matter of law, that he must be 
held to have assumed the risk. 
The case is close. Ferren v. Old 
Colony R. Co., 143 Mass. 197, 9 
N. E. 608. Whether a servant 
called from his regular employment 
to perform a service in removing 
substances from tmder a machine, 
a work with which he was un- 
familiar, assumed the risk of re- 
moving the same with his hand 
when the machine was in motion, 
was held a question for the jury. 
Hillsboro Oil Co. v. White, 54 
S. W. (Tex. Civ. App.) 432. 
' Employee coupung cars. 
Where a railroad employee of ma- 
ture shears and long exi>erience was 
injured while coupling cars in obedi- 
ence to the orders of his immediate 
superior, it was held that he could 
not recover therefor because that 
duty was outside of his employ- 
ment, when he made no objection 
to performing it, and there was no 
threat of dismissal in case of refusal 
Hogan V. Northern Pacific R. Co., 
53 Fed. 519. [Jones v. Railroad Co., 
49 Mich. 573, 14 N. W. 551, dis- 
approved.] 

Foreman BBinaB cbew; switch- 
ing. Where the foreman of a gang 
of men engaged in constructing 
buildings and bridges for a railroad 
company was directed to take his 
engine and men and do some 
switching, and he undertook such 



work without objection, and was 
injured, it was held that his action 
could not be maintained. It was 
said: He made no objections to 
doing the work on the ground that 
it was dangerous, or that he had 
not sufficient knowledge or experi- 
ence to do the same with safety to 
himself and the men under his 
charge. Under these circumstances 
no negligence can be attributed to 
the company for directing him to do 
the work. He undertook volun- 
tarily, knowing the general danger 
of the employment, and the rule 
applicable to work done in his 
ordinary employment must be 
applied to work done by him under 
such order. Cole v. C. & N. W. R. 
Co., 71 Wis. 114, 37 N. W. 85, 6 
Am. St. Rep. 201. 

Opebatinq saw. Where an 
employee, working with a slab car 
which was defective, was told by 
the foreman to fix it up as best he 
could and he would have it re- 
paired, and such employee volun- 
tarily took a piece of lumber to a 
saw mill, and personally undertook, 
by the use of the saw, to make such 
a piece as he desired for making the 
temporary repairs, and in the use 
of the saw he was injured, it was 
held that he had no ground for re- 
covery; that the order of the fore- 
man did not extend to a direction to 
use a dangerous machine, with the 



2012 



Mastbb and Sebvant. 



§756 



in a dangerous emplojntuent, outside of that for which he is 
engaged, arises not from the direction of the master to 
depart from the one service and to engage in the other, but 
from failure to give proper warning of the attendant 
danger, in cases where the danger is not obvious, or where 



use of which he was inexperienoed. 
Lindstrand v. Delta Lumber Co., 
68 Mich. 261, 36 N. W. 67. 

Operatinq saw under protest. 
Where a young mail was told that 
he could either run a split saw or 
lay off, and he was injured while 
engaged in such service, it was held 
he could not recover ui>on the 
ground that such work was beyond 
the scope of the work he was em- 
ployed to do. Prentiss v. Kent Mfg. 
Co.. 63 Mich. 478, 30 N. W. 109. 
Where, however, an employee was 
injured while using a circular saw 
in defendant's factory, and one of 
the grounds urged in favor of a 
recovery was that the work was 
outside of the duties he was engaged 
to perform, and there was evidence 
to the effect that he protested 
against performing such work and 
did it unwillingly, it was said, even 
if the work was without the scope 
of his employment, he could not, 
by his protest, cast all the risk 
of the accident upon the em- 
ployer. An employee under such 
circumstances has his choice 
either to leave his employment 
or to remain and assume all the 
risks incident to the work he 
knows he is expected to do. 
Wheeler v. Berry, 95 Mich. 260, 
54 N. W. 876. It was said that 
Chicago & N. W. RaUway Co. v. 
Bayfield, 37 Mich. 205, was decided 
entirely upon the inexi)erience of 



the boy; that Broderick v. Depot 
Co., 56 Mich. 261. 22 N. W. 802, 
56 Am. Rep. 382, was dearly 
distinguishable. 

Trammer in mine fixing Roor. 
Where a trammer in a mine was 
directed by the captain to help a 
miner to fix the roof, and while do- 
ing so he was injured by ore or 
rock falling from the roof, which 
had just been tested in his presence 
and which seemed to be solid, and 
it appeared he had been tramming 
for four winters in this and other 
stopes, it was held that he must 
have known the danger of this 
temi)orary employment, and, hav- 
ing undertaken it without objec- 
tion, he assumed the risk. Paule v. 
Florence Mining Co., 80 Wis. 350, 
50 N. W. 189. 

Mere fact work of different 
kind does not preclx7de defense 
OF A8BX7MED RISK. The mere fact 
that the actual work a miner is 
engaged in at the time of receiving 
injury, is of a different kind from 
that he was employed to do, but 
which he undertook without objec- 
tion at the request of the foreman, 
does not prevent the application 
of the rule of assumed risks as to 
the dangers from falling ore in the 
mine, when such is liable to happen 
in the ordinary course of prosecut- 
ing the business. Paule v. Florence 
Mining Co., 80 Wis. 360, 50 N. W. 
189. 



^ 756 Acts OuTsroB Scofb op Employment, 2013 

the servant is of immature years or unable to comprehend 
the danger."® 

The rule quite generally prevailing is stated by courts 
in various forms of expression, yet to practically the same 
effect. In some cases the proper qualifications of the rule 
are not stated as fully as they should have been. The 
statement of the rule generally recognized is that a master 
is not liable for injuries to an employee resulting from 
causes open to the observation of such employee, and 
which it requires no special skill or training to foresee 
were likely to occasion him harm, although he was at the 
time engaged in the performance of a service which he had 
not contracted to render."^ 

If it is understood by the expression ''open to the 
observation of the employee," such as he or an ordinanly 
prudent person situated as he was, would be likely to 
observe in the exercise of ordinary care, then such state- 
ment would undoubtedly be correct. It must, in all cases, 
be considered as to the opportunity which the employee 
has for observation, or to know the perils which he may 
encounter. If called uiK)n to perform a dangerous act or 
service which must be performed in haste and without 
an opportunity fairly to observe his surroundings, though 
otherwise the danger might be apparent, it could not 
reasonably be said that he should be charged with observ- 
ing or knowing that which he had had no opportunity to 
observe or know. It has been stated that where the 
risks are equally open to the observation of the servant 
and the master, the former takes upon himself all the 
risk,i» 

This statement is perhaps too broad. The master and 
the servant can hardly be said to be on an equal footing 
in this respect. Their opportunities for observation may 
not be equal. It is also stated that if a servant undertakes 

128. Reed v. Stookmeyer, 74 129. CmnimngB v. CoUins, 61 
Fed. 186; Cole v. Chioago & N. Mo. 520. 

W. R.Co.,71Wia.ll4,87N.W.86, 130. Cummings v. Collina, 61 
5 Am. St. Rep. 201. Mo. 520; North Chicago St. R. Co. 

V. Conway, 76 111. App. 621. 



2014 Mastbb Aism Sebvant. ^756 

such new service voluntarily, and without protest or ob- 
jection, that he thereby assumes the risk.^'^ 

This should be taken with the qualification that he 
knows, or has the means of knowing of, the perils incident 
to the new undertaking, which the master knows or is 
presumed to know. 

In such case negligence of the master cannot be pre- 
dicated upon the ground of the servant being directed to 
perform a service outside of his regular employment, but 
the rule to be applied is that relating to his regular 
employment, and if the circumstances are such that 
warning or instruction were not required, then the servant 
assumed the risk. 

Of course, if the servant had no knowledge, and was not 
chargeable with knowledge, of the danger, the risk is not 
assumed;^'' it being entirely immaterial in such a case 
whether the work was within or without the scope of the 
injured servant's employment. 

Master's duty in respect to appliances and place 
where place of work changed. 

The master being bound to exercise reasonable care to 
provide a safe place for his servant to perform his work, 
and to the exercise of reasonable care to keep and main- 
tain the place safe, such duty as to machinery, appUances 
and place continues when his servant is changed from 
place to place upon the work in which he is engaged for 
his master, when the danger of such change is not obvious 
and the servant is without knowledge of it and cannot 
observe and acquire the knowledge in the exercise of 
ordinary care in the employment.*" 

131. Hogan v. Northern Pa- N. W. 1032; Ft. Worth & D. C. R. 
cific R. Co., 63 Fed. 619; Hanrathy Co. v. Wrenn, 20 Tex. Civ. App. 
V. Northern Cent. R. Co., 46 Md. 628, 60 S. W. 210; International & 
280; Cole v. Chicago & N. W. R. G. N. R. Co. v. Gaitanes, 70 8. W. 
Co., 71 WiB. 114, 37 N. W, 84, 6 (Tex. Civ. App.) 101. 

Am. St. Rep. 201. 133. Comben v. Belleville Stone 

132. Walker v. Lake Shore & Co., 69 N. J. L. 226, 36 AtL 473. 
M. S. R. Co., 104 Mich. 606, 62 See also supra—. 



§ 756 Acts Otttsidb Soopb op Ebcplotmbnt. 2015 



Rule as stated by Indiana court. 

It was stated that an employee of mature years who is 
removed from one line of employment and set at work at 
another without objection, and is then injured while 
operating machinery with which he is not familiar, or 
which he does not know how to operate, cannot recover 
from his employer for such injuries unless his employer 
knows that he did not know how to operate the machine, 
or, having informed his employer of his inexperience, 
the latter failed to instruct him. If a servant is ignorant 
of the method of operating machinery with which he is to 
work, it is his duty to inform his employer, and if he 
conceals his inexperience and undertakes to work with 
machinery with the operation of which he is unfamiliar, 
and is injured by reason of his inexperience, the employer 
is not answerable therefor. Where a servant undertakes to 
engage in a master's service and to perform certain duties, 
the master has a right to assume that he is qualified to 
perform the duties of the position he seeks to occupy, and 
comi)etent to apprehend and avoid all the obvious hazards 
of such service; and the same presumption arises where a 
servant, employed to perform labor in a particular branch 
or department of a factory, is transferred by the master to 
another branch or department, and assigned to do other 
and different work from that for which he was originally 
employed. It must be presumed that a servant will not 
undertake to perform labor or operate machinery con- 
cerning which he has no knowledge or experience. Hence 
his willingness to undertake the work is sufficient to 
warrant the master in assuming that he is competent, 
unless it is shown that the master knows to the con- 
trary."* 

As stated, there are courts which lay stress upon the 
mere fact that the servant is directed to perform a dan- 
gerous service outside his regular employment and give 
force to it in considering the liability of the master in case 

134. Aroade File Works v. Ju- 
teaa, 15 Ind. App. 460, 40 N. E. 

818, 44 N. E 326. 

3 M. Mb S*' 



2016 Masteb and Sebvakt. ^756 

of injury to a servant while thus engaged. Thus it is said: 
The servant's impUed assumption of risk is confined to 
the particular work or class of work for which he is em- 
ployed. There is no implied undertaking except as it accom- 
panies and is a part of the contract of hiring between the 
parties. When the servant voluntarily and without direc- 
tion from the master, and without his acquiescence, goes 
into hazardous work outside of his contract of hiring, he 
puts himself beyond the protection of the master's impUed 
undertakings, and if he is injured he must suffer the con- 
sequences. On the other hand, if the servant, by the order 
of the master, is carried beyond the contract of hiring, he 
is carried away from his undertaking as to risks. If the 
master orders him to work temporarily in another de- 
partment of the general business, when the work is of so 
different a character and nature that it cannot be said to 
be within the scope of the emplojntnent, and when he is 
associated with a different class of employees, he will not, 
by obeying such orders, necessarily thereby assmne the 
risks incident to the work and the risk of negligence on 
the part of such employees. Whether or not the servant 
may be negligent in obeying such orders will depend upon 
the facts QfUd circimistances of each particular case. They 
may show he voluntarily assumed the increased risk, or 
he may show that he obeyed under threats of discharge 
or under such circumstances as that he might well ex- 
pect a discharge if he disobeyed. Hence it is that 
when a servant is thus, by order of his master, put at work 
outside of his employment, and is injured by reason of 
defective machinery, railroad tracks, etc., without his 
fault, the master is liable regardless of the care he may 
have exercised to keep them in a safe condition. The mas- 
ter impliedly assures him, not only that he has exercised 
reasonable care in respect to the safety of the appliances, 
but that they are in a safe condition and fit for the busi- 
ness for which they are used. This was said in reference 
to a section hand ordered to couple cars.*'* 

135. Pittsburg C. & St. L. R. 
Co. V. Adams, 105 Ind. 151, 5 N. 
E. 187. 



§ 756 Acts Oxjtsidb Scope op Employment. 2017 

And again by the same court: When the master orders 
a servant to do something which involves encountering a 
risk not contemplated in his employment, although the 
risk is equally open to the observation of both, it does not 
necessarily follow that the servant either assumes the 
increased risk or is negUgent in obeying the order. If the 
apparent danger is such that a man of ordinary prudence 
would not take the risk, the servant acts at his peril. 
But where the apparent danger is not such as to deter a 
man of ordinary prudence from encountering it, the serv- 
ant will not be compelled to abandon the service or assume 
aU additional risk, but may obey the order, using care in 
proportion to the risk apparently assumed."^ 

The doctrine of the Indiana court was applied where it 
was alleged that a servant employed to repair cars on 
special tracks made for that purpose, was injured while 
performing his usual duties upon another track not 
specially devoted to such special purpose. In fact, be- 
cause the work was being performed upon a different 
track, such work was outside the scope of his employment. 
It was said: If the master requires of him a service 
outside of the duties ordinarily incident to his employ- 
ment, and subjecting him to additional danger, he does 
not necessarily assume the additional hazard in under- 
taking to perform the unusual and extra service, even 
though the dangers attending it are obvious. ^^^ 

Thus, it will be seen, that Indiana is out of line with the 
decisions of the other states both in holding that the 
•obvious risks are not assumed, and that a risk is not nec- 
essarily assumed although equally open to the observation 
of master and servant, where the work is not within the 
scope of employment, thus laying down a rule different 
from that held where the work is within the scope of the 
emplo3rment. 

136. NaQ V. Railway Co., 129 137. Louisville, E. & St. L. R. 

Ind. 260, 28 N. E. 183; Cinein- Co. v. Hanning, 131 Ind. 528, 31 

nati, H. & I. R. Co. v. Madden, N. E. 187. 
134 Ind. 462, 34 N. E. 227. 



2018 Mastbb and Sebvant. ^756 

And in that state the holding that ordering a servant 
to do work outside the scope of his. employment is an 
implied assurance of safety of the place and appliances/ '* 
is not generally held in other jurisdictions and has been 
expressly repudiated in at least one state. ^'* 

Arkansas • 

The rule was stated that where the master orders the 
servant to work temporarily in another department 
from that for which he was employed, where the work and 
the employees are different, such servant assumes the risk 
of such special employment, unless there are dangers 
incident to it which in consideration of his known inex- 
perience or of their occult nature the master should have 
pointed out to him and did not.^^^ 

Federal court. 
It was stated when a master commands a servant to go 
outside of his regular employment to do work, which is 
attended with special danger, and the servant does the 
work at the time and in the way directed, the fact that the 
servant knew the work was dangerous does not exonerate 
the master or make the servant guilty of contributory 
negligence, unless the character of the danger be so patent 
and extreme that no one but a foolhardy, reckless man 
would attempt it. When, however, the servant has equal 
means of knowing the danger, so that the master and 
servant stand equal in that respect, and the servant is not 
specifically commanded as to the time and manner in which 
the work is to be done, but is told to do a particular thing,* 
and has such discretion that he can have the control over 
the means, time and manner of doing the work, then, 
unless he does it in a way and with the means which 
will be safest, he will be charged with contributory negli- 
gence.**^ 

138. Pittsburgh, C. & St. L. 140. Ft. Smith Oil Co. v. Slover, 
R. Co. V. Adams, 105 Ind. 151, 58 Ark. 168, 24 S. W. 106. 

5 N. E. 187. 141. This was said where a 

139. Mary Lee Coal & R. Co. repairer was directed to repair a 
v. Chambliss, 97 Ala. 171, 11 So. water tank, and his duty was to 
897. stand on a platform about twenty- 



§756 



Acts Outside Scope op Employment. 



2019 



Illinois. 

The Illinois court states a rule generally applied in 
that state, and in Missouri and some other states, to all 
features of the doctrine of assmned risk, which is, in sub- 
stance, that where a servant is directed by his foreman 
to perform a particular service outside the scope of his 
employment, although the servant has knowledge of the 
dangers attending such new service, he does not assume 
the risk unless the danger is such that an ordinary prudent 
man would not encounter it. He is not bound to disobey 
on the pain of assuming the risk.^^^ 

Maryland doctrine apparently same as in Indiana. 

The Maryland court adopted a statement in an Indiana 
opinion, as follows: **When, by order of the master, the 
servant is carried beyond his employment, he is carried 
away from his implied undertaking to assume the risks 
incident to the emplo3mient. Hence it is that when a 
servant is thus, by order of the master, put at work outside 
of his emplo3mient, and is injured by defective machinery, 
railroad track, etc., without his fault, the master is liable 
regardless of the care he may have exercised to keep the 
machinery, railroad track, etc., in a safe condition." ^^' 

That the employee is thus carried away from his im- 
plied agreement to assmne ordinary risks is not questioned. 
There are other risks not ordinary, incident to an employ- 



one inolies wide, and while per* 
forming his duties he slipped and 
fell, owing to the narrowness of the 
platform and its icy condition. It 
was held that the danger was equal- 
ly obvious to the servant and the 
master; that the act was appar- 
ently reckless in the absence of his 
taking the precautions open to 
him for his safety, and that it did 
not appear that the means and 
manner of doing the work, that is, 
of providing for his safety, were 
within his discretion. English v. 
C. M. & St. P. R. Ck>., 24 Fed. 906. 



142. Dallamand v. Saaffeldt, 
175 m. 310, 51 N. E. 645, 67 Am. 
8t. Rep. 214, 48 L. R. A. 753; 
Chicago, R. I. & P. R Co. v. 
Rathneau, 225 Dl. 278, 80 N. E. 
110. 

143. The court held that where 
a lad of thirteen was put to work at 
a machine contrary to the express 
terms of his employment, made 
with his mother, he did not assume 
the risk of injury from such source. 
National Enameling & Stamping 
Co. V. Brady, 93 Md. 646, 49 Ati. 
845. 



2020 Masteb and Sbbvant. §756 

ment, which are assumed by the employee, where obvious 
or known, and the only question, where they are incurred 
in other than the servant's regular emplosrment, is that 
which is involved in the reg^ular employment, whether to a 
mind like his, under the circumstances, they are obvious 
and should be known, or are in fact known by him. 

Michigan. 

An employee, by his contract of employment, assimies 
the risks of injury which are properly incident to his 
employment and about which he may inform himself 
by observation, but when, by direction of the master, 
he is engaged in work outside the scope of his regular 
employment, the most that can be said is that he may be 
negligent in undertaking work which is obviously dan- 
gerous to any one of his experience and intelligence.^** 

Concise statement of rule. 

A better and more concise statement of the rule is 
that if the servant is familiar with the dangers attending 
such temporary service, and voluntarily attempts to 
perform the service, then the risk is one which he as- 
sumes. ^*^ So where the danger is plain, open and ap- 
parent to his mind.^** 

And if the duties of the new work does not require 
him to expose himself to increased danger, he is not 
excused from assumption of the risk by the mere fact of 
change in the service."^ 

Doctrine summarized. 

In 1894 the author had occasion, upon a review of the 
authorities and consideration of the principles involved 
in the general subject, to state his conclusions which 
were soon thereafter approved by the Supreme court 
of Michigan (Gavigan v. Lake Shore & M. S. R. Co., 110 

144. Johnson v. Desmond 146. Chicago, R. I. & P. R. Co. 
Chemical Co., 152 Mich. 84, 115 v. Kinnare, 190 Bl. 0, 60 N. E. 57; 
N. W. 1043. Worthington v. Goforth, 119 Ala. 

145. Consolidated Stone Co. v. 44, 26 So. 531. 

Redmon, 26 Ind. App. 31, 55 N. 147. Morewood v. Smith, 25 
E. 454, 84 Am. St. Rep. 278. Ind. App. 264, 57 N. £. 199. 



§ 756 Acts Outside Scope of Employment. 2021 

Mich. 74, 67 N. W. 1097) and since have been quite 
generally approved by other courts. The following is 
a statement of such conclusions and the reasoning upon 
which they were based. 

''While great stress is laid in some cases upon the 
fact that the risk has been increased, as well as, in other 
cases, that the servant was injured while in the perform- 
ance of a hazardous act outside of his general employ- 
ment, yet it is difficult to ascertain that any special 
importance is to be attached to that fact alone, any 
further than that the risks of the general employment, 
thus increased, are not assumed as risks incident to 
the employment, and therefore knowledge thereof, actual 
or presmned, must be shown by the master, unless they 
are such as axe obvious, requiring no special knowledge 
or skill to understand or appreciate. If such dangers 
are not obvious, and the employee can not be presumed 
to understand or appreciate them, then he must be 
warned and instructed. I know of no rule, that where 
the servant fuUy understands and comprehends the dan- 
ger of an increased risk attendant upon a temporary 
or occasional act of service, and he performs the act, 
or attempts to do so, the master is liable for the injury 
he may sustain, merely upon the groimd of such increased 
risk, or risk attending such temporary employment. The 
liability in these, as in other respects, is made to depend 
upon tiie knowledge and experience of the servant, and 
the warning and instructions given, where any such are 
by law required. The rule has been stated that if, 
while in the performance of such a temporary service, 
the servant's opportunities for observing the danger 
was equal to that of the company, or if he was required 
to perform an unusually dangerous service for good 
reasons, as for the safety of passengers, then the master 
cannot be said to have been negligent."^*® 

148. Id Jonee y. Lake Shore, M. faot of being required to perform 

R. Ck>., 49 Mioh. 573, 14 N. W. other duties than such as were 

551, from the report of the case, it properly embraced in his contract, 

might be understood that the mere would imjMse a liability ui>on the 



2022 



Masteb and Sebvant. 



§756 



Where peril increased temporarily. 

Where the perils of an emplo3mient are increased 
temporarily, it cannot be said that the servant assumes 
the risk or should demand their removal. Hence, when 
a shaft had been put in a room over night, where many 



master to respond in dsmas:e6 for 
injury the servant might sustain 
while so engaged. Tet such could 
not have been intended by the 
court, but, rather, the ground for 
recovery was within the princi- 
ples stated in Chicago & N. W. R. 
Co. V. Bayfield, 37 Mich. 204. In 
fact, the court so state: There 
the recovery proceeded upon the 
ground of directing an inexperi- 
enced lad, who did not comprehend 
the danger, to perform tiie haz- 
ardous duty of applying brakes to 
moving cars. The same position 
was taken by counsel in Cole v. 
Railway Co., 71 Wis. 114, 37 N. 
W. 84, 5 Am. St. Rep. 201, to-wit: 
That the mere direction of the mas- 
ter to perform such temporary and 
dangerous work is negligence on 
the part of the master suificient to 
sustain an action of t^e employee 
so injured in the performance of 
such work while he is using ordi- 
nary care on his part. The court 
say: "We are very clear that the 
broad rule contended for by the 
learned counsel for the respondent 
is not sustained by the authorities, 
nor by the gensnl rules of law 
which define the relations of em- 
ployer and employee. Some of 
the cases cited may have some gen- 
eral statements which give some 
countenance to the rule as stated 
by counsel; but when the facts of 
each case axe considered, it will, we 
think, be found that no such broad 
rule was ever intended to be sanc- 



tioned by the courts." The court 
further state that negligence of the 
master cannot be predicated sim- 
ply on the fact that he directed his 
employee to do the work; that in 
every case of negligence the evi- 
dence must show some violation of 
duty on the part of the master. No 
case can be found where it had been 
held that the mere fact that the 
employer requested his employee 
to perform a temporary work out- 
side of his ordinary employment 
was a violation of any duty which 
he owed to his employee. If the 
particular work ordered to be done 
is of a dangerous character, and 
one which requires peculiar skill in 
its performance, and the servant 
so directed has not the requisite 
knowledge or skill for doing the 
work with safety, and such want 
of skill is known, or might be rea- 
sonably supposed to be known, to 
the employer, in that case the di- 
rection of the master to do the 
work might be justly held to be a 
violation of duty which he owes to 
his employee, even though the em- 
ployee undertook to do the work 
witiiout objection or protest upon 
his part. The Wisconsin court re- 
views many leading cases upon the 
subject, including those rehed upon 
by the respondent's counsel, and 
asserts that none sustain the posi- 
tion contended for by such coun- 
sel. The court further say that 
they are not called upon to decide 
what the rule would be if the em- 



§ 756 Acts Outsidb Scope of EMPLOYMEnrT. 



2023 



girls were employed, it being extra dangerous by reason of 
its height, the master intending to remedy the defect 
as soon as there was time, and one of such girls was 
killed by her clothing getting caught in the shaft, it 
was held the master was liable. ^^^ 

Temporary work, latent dangers. 

Where one employed as a blacksmith was suddenly 
called from his shop to assist in hoisting and placing in 
position a large and heavy smokestack, without an 
opi>ortunity to examine the arrangement for doing the 
work, the material question was said to be whether he 
had sufficient knowledge to understand the hazards of 
the extra work, and therefore a proper question for the 
jury was whether, in the mode adopted for hoisting, 
there was required pecuhar skill or knowledge to per- 
form it with safety, though his part of the work was 
merely to pull on the rope. The rule of law was stated 
to be that when a servant is ordered by his master to do 
work outside the scope of his employment, and bringing 
him in contact with a different class of fellow-servants, 
the latent risks incident to the new work are as to him 
extra hazards because additional to the risks of his 
regular duties.^** 

Employee, inexperienced, directed to do an extra 
hazardous act. 
Where it was alleged that a servant was employed as 
a common laborer about defendant's freight house and 



ployee, when ordered to do such 
temiwrary work, objected on ao- 
eoiint of his want of experience and 
knowledge, and, notwithstanding 
such declaration, his employer in- 
sisted upon it, and thereupon he 
undertook to do the work after 
such protest, rather than subject 
himself to the risk of bdng dis- 
charged from his employment. 
Th^ neither approve or disafBrm 
the rule stated in Leary v. Rail- 
road Co., 139 liiass. 587, 2 N. E. 



115, 52 Am. Rep. 733. The weight 
of authority, as stated in the note 
to Cole y. Railway Co., is that the 
mere fact of objection and protest 
by the employee, the conduct of 
the master not amounting to co- 
ercion, does not change the rule; 
and many cases are cited. 

140. Fairbanks y. Haentzche, 
73 m. 236. 

150. Consolidated Coal Co. y. 
Hannie, 146 Ul. 614, 35 N. E. 162. 



2024 Masteb and Sbbvant. § 756 

yards, specially for loading and unloading freight cars, 
and while so employed was ordered by the superintendent 
or foreman of the defendant, who had the management, 
direction and supervision of the business and affairs 
of the company about the depot, to couple a car to 
others in a train, and such servant was unskilled and 
inexperienced in such work, as such foreman well knew, 
and such servant was killed by being crushed between 
the cars, caused by the negligent manner in which the 
engine was handled, it was said that when a person in 
the employment of another, in the performance of a 
specific line of duty only ordinarily hazardous, is com- 
manded by a fellow-servant, but to whom he is so sub- 
ordinate that he is compelled to obey his directions, 
to do an act in the same general service, but different 
from the sphere of employment in which he had been 
engaged to serve, and extra hazardous in its character, 
and in respect to which the servant making the require- 
ment knew he was unskilled and inexperienced, and in 
doing the same the servant so directed receives injuries 
occasioned by the negligence of another servant em- 
ployed in the particular line of service in which the act 
was being done, the common employer will be liable 
to the servant injured."^ 

Effect of fear of discharge. 

The fact that the order is obeyed because of fear of 
losing one's job does not affect the assumption of risk.^" 

Question ordinarily one of fact. 

It has been held that clear, explicit and uncontra- 
dicted proof is required to show an assumption of risk 
of danger, as matter of law, in a temporary employment 
outside of the regular employment of the servant. Evi- 

151. Lalor v. Chicago, B. A Q. 52 Am. St. Rep. 733; Gavigan v. 
R. Co., 52 111. 401, 4 Am. Rep. 616. Lake Shore & M. S. R. Co., 110 

152. Wormell v. Maine Cent. R. Mich. 71, 67 N. W. 1097. But see 
Co., 70 Me. 397, 10 Atl. 39, 1 Am. Jones v. Lake Shore & M. S. R. 
St. Rep. 321;Leary v. Boston & A. Co., 49 Mich. 573, 14 N. W. 551. 
R. Co., 139 Mass. 580, 2 N. E. 115, 



§ 757 Acts Outside Scope of Employment. 



2025 



dence based merely upon inference and presumption, 
and not necessarily proving knowledge of the special 
danger by the servalnt, raises only a question of fact."' 

§ 757. Ordering minor to perform more dangerous work. 

The fact that a minor is put to work at a more dan- 
gerous class of work, outside the scope of his duties, 
does not necessarily render the master liable, but it 
depends on whether the servant was warned and whether 
he had sufficient capacity to understand the dangers."^ 



153. Danbert v. Westem Meat 
Co., 135 Cal. 144, 67 Pao. 133. 

154. A boy fourteen years old 
was employed to work about an 
elevator in a mill. Subsequently 
he was set at work at a picking ma- 
chine, a more hazardous employ- 
ment, when he was injured. The 
contention on the part of the plain- 
tiff was that this of itself was suf- 
ficient to warrant a recovery, with- 
out reference to whether the act of 
changing his work was a negligent 
or prudent thing to do. It was 
said: This proposition is wrong. 
In the case of an adult the employer 
would not be liable if such adult 
knew the risks, and the rule is the 
same as to minors if they have suf- 
ficient capacity to avoid the danger 
and know the danger to be avoided. 
Putting a minor to work becomes 
a matter of discretion and care to 
be exercised with reference to such 
circumstances, and the employer 
can only be held liable when he does 
not exercise such discretion and 
care; that is, when he is negligent. 
Anderson v. Morrison, 22 Minn. 
274. 

Ordered by bttperiob to per- 
form EXTRA HAZARDOITS ACT. It 

was said that the presumption that 
a minor takes upon himself the 



risks incident to the undertaking 
cannot arise when the risk is not 
within the contract of service, and 
the servant had no reason to be- 
lieve he would have to encounter it. 
This was said where a boy of tender 
years, employed as helper on a ma- 
chine and under the control of an- 
other employee, was directed by 
his superior to ascend a ladder to a 
great hdght from the floor, among 
rapidly revolving and dangerous 
machinery, for the purpose of ad- 
justing a belt, and while making the 
effort his arm was caught and torn 
from his body. It was further said 
that if the person had been of ma- 
ture years it might, with some 
plausibility, be argued that he 
should have disobeyed it, and he 
must have known its execution was 
attended with danger, or, at any 
rate, if he chose to obey, that he 
took upon himself the risks inci- 
dent to the service. The boy, not 
being able to judge for himself, had 
a right to rely upon the judgment 
of the superior who directed him. 
Union Pac. R. Co. v. Fort, 17 Wall. 
653. Where a young boy was or- 
dered by a foreman having control 
over him, to perform the dangerous 
service of oiling a machine while in 
motion, which work was outside of 



2026 



Masteb and SEBVAiirr. 



§757 



If the servant is of tender years and inexperienced, 
and is ordered to do work outside the scope of his du- 
ties, and the work is such that a prudent master would 



the employment for whioh he was 
engaged, and he was injured while 
80 engaged, it was held an act of 
negligence on the part of the fore- 
man, for whioh the master was re- 
sponsible, to order the boy to per- 
form such a dangerous service; 
that in such a case the doctrine of 
fellow-servant had no application; 
that the act required to be done, 
being beyond the scope of the boy's 
employment, under the circum- 
stances could not be said was a risk 
assumed. The court approved 
Railroad Co. v. Fort, 17 Wall. 653, 
and distinguished Gartland v. Rail- 
road Co., 67 m. 498. Hinckley v. 
Horazdowsky, 133 Hi. 359, 24 N. 
E. 421, 23 Am. St. Rep. 618. 

Acting itndeb direction of 
coNDiTCTOR. Where a youth nine- 
teen years old, employed as a la- 
borer in connection with the opera- 
tion of a construction train, was 
directed by the conductor thereof 
to set brakes upon such train, and 
was killed while attempting the act, 
it was held that it was immaterial 
whether the direction of such serv- 
ant to perform the act was or was 
not within the conductor's instruc- 
tions, so long as the servant was 
within his control and subject to 
his direction in and about the work 
he was employed to do; that the 
servant was not called upon to dis- 
obey the order or assume the risk; 
that such work on the part of the 
boy was beyond the scope of his 
emplo3rment. It was subsequently 
said in Wheeler v. Berry, 95 Mich. 
250, 54 N. W. 876, that if the plain- 



tiif had been a man of age and ex- 
perience with the work, it was dear 
that a recovery could not have been 
sustained. Chicago & N. W. R. 
Co. V. Bayfield, 37 Mich. 205. 
This case is out of line with the 
great weight of authority. 

Call boy acting under order 
OF YARD FOREMAN. WhcTc a minor 
who was employed by the defend- 
ant as caU boy in its yard office, 
whose duties among others was to 
deliver messages to different de- 
partments in the yard, was, while 
on a train with a message, request- 
ed by the yard foreman to un- 
couple a car, and in obeying was 
injured, it was held he could not 
recover; that he was under no ob- 
ligation to obey the foreman; that 
he was a mere volunteer. Texas 
& N. O. R. Co. V. Skinner, 4 Tex. 
Civ. App. 661, 23 S. W. 1001. 

Errand bot directed to re- 
move GIANT POWDER FROM FIRE. 

Where a boy was employed by con- 
tractors, who were engaged in rail- 
road grading, as a water and errand 
boy, and he was ordered by the 
gang boss to remove a stick of giant 
I>owder from a fire, where it was 
burning, having been placed there 
to thaw, and was killed by an ex- 
plosion, it was said that as a general 
rule a person entering into the em- 
ploy of another is held to assume 
its ordinary risks; but if a boy of 
fifteen years of age is engaged to 
work in an unhazardous service, 
and is placed by the employer 
under the control of the gang boss, 
and such gang boss orders him to 



i758 



Acts Outside Scopb of Employment. 



2027 



not have imposed upon a person of his years, strength, 
and judgment, the master is liable although he fully 
warned and instructed the servant."* 

§ 758. Custom to obey orders outside of line of regular 
duty. 

Where a person, employed as a watchman to a pile 
driver train and engine, was injured by the explosion of 
the boiler, and the question was raised that, at the time 
of his injury, he was engaged in a line of duty outside 
the scope of his employment, at the request of his imme- 
diate superior, it was said that if the plaintiff was sub- 
ject to the control of such superior, and was ordered by 
him to go with the engine and he obeyed, although it 
was not in the line of his duty as watchman, and if it 
was customary in the company's service to obey orders 
to do duty outside of their regular employment, then 
the plaintiff was on duty while attending the engine."* 



do a thing in its nature hazardous 
to life and limb and outside the 
duties of the boy, but within the 
scope of the emplo3rment and du- 
ties of the boss, and in the attempt 
to perform suoh act the boy is there- 
by killed, then the giving of such 
orders is negligence chargeable to 
the master. Orman v. Mannix, 
17 Colo. 664, 30 Pao. 1037, 31 Am. 
8t. Rep. 340, 17 L. R. A. 602. 

Changed to mobs dangbbous 
POSITION. Where a boy was em- 
ployed in a mine with his father's 
consent in a certain capacity, and 
was afterwards, without such con- 
sent, changed to another less safe 
position, and was killed, it was 
held the risks of the latter were not 
assumed. The action was brought 
in the name of the parents. Weaver 



V. Iselin, 161 Pa. St. 386, 29 AtL 
49. 

155. The facts were that a boy 
fourteen years old, employed as a 
helper in a spinning room, whose 
duties were to sweep the floor, pick 
waste and occasionally to oil some 
parts of the machinery when not 
in motion, was directed to go to 
the top of a step ladder, and hold 
the belt away from a revolving 
shaft, and was caught by the belt 
and injured. Hayes v. Calches- 
ter Mills, 69 Vt. 1, 37 Atl. 269, 60 
Am. St. Rep. 915. To same effect, 
Union Pac. R. Co. v. Fort, 17 Wall. 
(U. S.) 353. 

156. East Line & R. R. Co. v. 
Scott, 68 Tex. 694, 5 S. W. 501; 
same case, 72 Tex. 70, 10 S. W. 298, 
10 Am. St. Rep. 804. 



2028 Masteb and SBBVAjrT. ^759 



CHAPTER V. 

FAILURE OF SERVANT TO GIVE NOTICE OF DEFECTS OR 

NEGLIGENCE. 

Seo. Seo. 

759. Statutes. 762. Of what defects notice must 

760. Effect. be given. 

761. Knowledge of master or supe- 763. To whom notice must be 

rior servant. given. 

§ 759. Statutes. 

At common law, in a majority of the states, if the 
master is negligent but the servant, with knowledge 
thereof, continues in the employment without objection, 
and is afterwards injured by reason of such negligence, 
he cannot recover because he is deemed to have assumed 
the risk. This rule has been by some jurists considered 
unfair to the injured employee, and in some states there 
are statutes or constitutional provisions expressly de- 
claring that such knowledge shall not bar a recovery."^ 

In other jurisdictions, there are statutes which say 
that such continuance in the emplo3mient shall not con- 
stitute negligence ''as matter of fact or as matter of 
law.""« 

And in several states, including Alabama, Massa- 
chusetts and New York, where knowledge of the defect 
or negligence is declared by statute not to constitute 
an assumption of risk, the statute provides a new de- 
fense for the master in lieu, at least in part, of the de- 
fense of assumed risk. This new defense is that (1) 
plaintiff knew of the defect or negligence; (2) defendant 
or his servants superior to plaintiff did not know thereof; 
and (3) that plaintiff gave no notice of such defect or 
negligence to defendant or a superior servant. "• 

157. See supra, § . to made the question in such a case 

158. Laws N. T. 1910, o. 352, one of fact. 

amending in this respect § 202 of 159. The statutes generally pro- 
the Labor Law which prior there- vide that if the servant or employee 



§§ 760-762 Failxjbe of Sebvant ob Negligence. 



2029 



§ 760. Effect. 

The effect of these statutory provisions is to create 
a new defense which the master may interpose, ^^^ and 
the burden of proving which rests on him.^*^ 

§ 761. Knowledge of master or superior servant. 

If the master or superior servant knows of the defect 
or negligence, and the injured servant knew the one or 
the other had such knowledge, failure to give notice is 
no defense."* 

And under most of the statutes knowledge on the 
part of the master or superior servant precludes the 
necessity for notice, irrespective of whether the injured 
servant knew or did not know that the one or the other 
was possessed of such knowledge."* 

The decision of a trial court that the knowledge of 
the defect on the part of the employer or superior serv- 
ant must be personal or actual knowledge and not con- 
structive notice, was overruled on the theory that an 
employer is presumed to know his own acts."^ 

§ 762. Of what defects notice must be given. 

This statutory provision does not require notice of 
latent defects of which by reason of their character the 
servant may be ignorant until injured thereby."^ 



knew of the defect or negligence 
causing the injury but failed in a 
reasonable time to give information 
thereof to the master or to some 
person superior to himself engaged 
in the service or employment of 
the master, the master is not liable 
unless the master or such superior 
already knew of such defect or 
negligence. 

160. Connolly v. Waltham, 156 
Mass. 368. 

161. Id; Murphy v. Marston 
Coal Co., 183 Mass. 385; Urqu- 
hart V. Smith & Anthony Co., 192 
Mass. 257. 



162. Keating v. Coon, 102 App. 
Div. 112, 92 N. Y. Supp. 474. 

163. Consol. Laws N. T. 1909, 
c. 36, § 202, as amended by Laws 
1910, c. 352; Anderson v. Milliken 
Bros., 108 N. Y. Supp. 61. 

164. Johnson v. Onondaga Pa- 
per Co., 98 N. Y. Supp. 602, where 
pulley put up eight days before the 
accident by some one in the em- 
ploy of the company, but it was 
claimed to have been done without 
the knowledge of the company. 

165. Urquhart v. Smith & An- 
thony Co., 192 Mass. 257; Mur- 
phy V. Marston Coal Co., 183 Mass. 
385. 



2030 Masteb akd Sbbvant. ^763 



So knowledge of the existence of certain things by 
the servant does not necessarily imply that the servant, 
before his injury, knew that such things were a ''defect'* 
within the statute, although in some instances such 
knowledge might be imputed from the common experi- 
ence of mankind.^** 

§ 763. To whom notice must be given. 

Under the Alabama statute, notice need not be given 
to the master or ''some person intrusted by the master 
with the duty of seeing that his wayE and plant are in 
proper condition'', but it is sufficient to give notice to 
the master or "some other person superior" to the in- 
jured servant in the employ or service of the same mas- 
ter."7 

166. Urquhart v. Smith & An- this statute must either notify the 
thony Co., 192 Mass. 257. master himself or the employee 

167. Cahaba Southern Min. Co. whose duty it is to see that the ap- 
▼. Pratt, 146 Ala. 245, 40 So. 943. plianoe in question is kept in proper 
But it was held in Alabama in an condition. Thomas ▼. Bellamy, 
earlier ease that a servant under 126 Ala. 253, 28 So. 707. 



^ 764, 765 



Gekebal Considerations. 



2031 



BOOK IV. 

EVIDENCE. 

Chapter 

I. General considerations, §§ 764, 765. 
n. Burden of proof, §§ 766-772. 
ni. Admissibility of evidence, §§ 77S-792. 
IV. Character and sufficiency of evidence, §§ 79»- 
797. 



CHAPTER I. 



GENERAL CONSIDBRATIONS. 



Seo. 

764. Soope of treatment. 

765. Ptesumptions in general. 



Seo. 



Presmnption that injured 
servant was not negli- 
gent. 



§ 764. Scope of treatment 

It is not within the scope of this work to state or dis- 
cuss the general principles underlying the laws of evi- 
dence, but merely to direct attention to the application of 
those certain rules of evidence which particularly apply 
to the several matters embraced within this work. 

§ 765. Presumptions in general. 

The question of presumptions has been considered to 
some extent in connection with the question as to the 
burden of proof. For instance, it has been stated that the 
negligence of neither plaiQtiff nor defendant will ordi- 
narily be presumed, but on the contrary it will be pre- 
sumed that they were in the exercise of due care at the 
time of the accident. In this connection it is necess^Lry 
to always keep in mind the difference between rebuttable 

8 M. Mb oj 



2032 



Masteb akd SEBVAiirr. 



§765 



and nonrebuttable presumptions, the former being the 
ordinary ones encountered in connection with the law 
relating to master and servant. 

Involved in the general subject are questions of pre- 
sumptions at almost every stage, and their force and 
effect has been stated in considering the different ele- 
ments. Hence it is unnecessary to repeat them here at 
any length. The presumption is that the appliances fur- 
nished are suitable and proper. When shown to be defec- 
tive, the presumption in most states is that the servant 
did not have knowledge thereof.^ 

The presumption is that the master has exercised 
proper care in the selection of the servant. ' 

The servant has a right to presume that the master will 
do his duty. • 

The negligence of the defendant, however, cannot be 
inferred from a presumption of care on the part of the 
person killed. A presumption in the i)erformance of duty 
attends the defendant as well as the person injured or 
killed. It must be overcome by direct evidence. One pre- 
sumption cannot be built upon another. ^ 

It is presumed that the master, or the person placed 
in charge of a hazardous business or department thereof, 
is familiar with the dangers ordinarily accompanying the 
business he has in charge.^ 

A person of apparently sufficient age and physical 
ability and mental caliber is presumed to be competent to 
perform the duties of the position he seeks and competent 
to apprehend and avoid all dangers that may be dis- 
covered by ordinary care and prudence.* 



1. Eliot y. EansaB City F. & 
S. M. R. Co., 204 Mo. 1, 102 S. W. 
532. 

2. Hills ▼. Railway Co., 55 
Mich. 440, 21 N. W. 878. 

3. Russell y. Railway Co., 32 
Mich. 230, 20 N. W. 147; Gibson 
y. Railway Co., 46 Mo. 163, 2 Am. 
Rep. 497. 

4. Looney y. Metropolitan Ry. 
Co., 200 U. S. 480; Douglas y. 



MitoheU, 35 Pa. St. 440; Phil., eto., 
R. Co. y. Henrioe, 92 Pa. St. 431; 
Tamell y. Kansas City, etc., R. 
Co., 113 Mo. 570. 

5. Smith y. Penninsular Car 
Works, 60 Mich. 501, 27 N. W. 
662, 1 Am. St. Rep. 542. 

6. Pittsburg, C. & St. L. R. 
Co. y. Adams, 105 Ind. 152, 5 N. 
E. 187. 



§765 



Genebal Considebations. 



2033 



So it may be stated as a rule that an employee is 
presumed to know as much about the subject as may be 
observed by a person having a reasonable degree of experi- 
ence in the employment upon which he enters;^ and is 
presumed, where a defect is obvious and suggestive of 
danger, to have knowledge thereof,^ as when the dangers 
are the subject of common knowledge.^ 

When it is not shown but that due care was exercised 
in the choice of a servant, no presumption of the latter's 
unfitness arises afterwards. The presumption is that if 
competent and fit when he enters the service, he remains 



so. 



10 



that injured servant was not negligent. 

The law out of regard to the instinct of self preserva- 
tion, win presume prima facie that a person who has 
suffered death by a railroad accident, was, at the time 
of the accident, in the exercise of due care and the pre- 
sumption is not overthrown by the mere fact of the 
injury." 

Thus, there being no evidence tending to show the 
purpose for which a brakeman went upon the track, the 
presumption is that it was for a purpose consistent with 
due care, rather than the contrary. ^^ 



7. Lyttle V. Chicago & W. M. R. 
Co., 84 Mich. 280, 47 N. W. 673. 

8. Wedgewood v. Railway Co., 
41 Wis. 478. 

9. Smith v. Penninsular Car 
Works, 60 Mich. 501, 27 N. W. 662, 
1 Am. St. Rep. 542; Stephenson y. 
Duncan, 73 Wis. 405, 41 N. W. 
337, 9 Am. St. Rep. 806; Ft. Wayne, 



J. & S. R. Co. y. Gildershoe, 33 
Mich. 133. 

10. Michigan Cent. R. Co. y. 
Gilbert, 46 Mich. 176, 9 N. W. 
243. See also supra, yol. 1. 

1 1 . Cameron y . Great Northern 
R. Co., 8 N. Dak. 124, 77 N. W. 
1016. 

12. Jones y. Flint & P. M. R. 
Co., 127 Mich. 198, 86 N. W. 838. 



2034 



Mastkb and Servant. 



CHAPTER II. 



BTJRDBN OF PROOF. 



Seo. 




6i 


3C. 


766. 


Negligence ot defendant. 


United Stotes Courts. 




PreBumption of 


due care 


Vermont. 




on part of 


employee 


"^rginia. 




does not change burden. 


Washington. 




Particular facts. 




West Virginia. 




Proof of injury alone. 


Wisconsin. 




Rule of res ipsa 


, loquitur 769. Contributory negligence. 




as changing burden. 


Alabama. 


767. 


Negligence of defendant as 


Arizona. 




cause of injuries. 




Arkansas. 


768. 


Assumed risk. 




California. 




Arkansas. 




Colorado. 




Alabama. 




Connecticut. 




Calif omia. 




Delaware. 




Ck>lorado. 




Florida. 




Connecticut. 




Georgia. 




Delaware. 




Idaho. 




Florida. 




Illinois. 




Qeorgia. 




Indiana. 




Idaho. 




Iowa. 




Illinois. 




Kansas. 




Indiana. 


- 


Kentucky. 




Iowa. 




IiouiRiana. 




Kentucky. 




Maine. 




Louisiana. 




Maryland. 




Maine. 




Massachusetts. 




Michigan. 




Michigan. 




Minnesota. 


^ 


Minnesota. 




Missouri. 




Mississippi. 




Montana. 




Missouri. 




Nebraska. 




Montana. 




New Jersey. 




Nebraska. 




New York. 




New Hampshire. 




North Carolina. 




New Jersey. 




Ohio. 




New York. 




Oregon. 




North Carolina. 




Rhode Island. 




Ohio. 




South Carolina. 




Oregon. 




Texas. 




Pennsylvania. 




Utah. 




Rhode Island. 



^766 



BxntDEN OF Proof. 



2035 



B60* 


See. 


m 


South Carolina. 




West Virginia. 


Tennessee. 




Wisconsin. 


Texas. 




Utah. 


United Stotes Ck>urts. 


770. 


Fellow-servants. 


Vermont. 


771. 


Relationship of parties. 


Virginia. 


772. 


Rule in Geoigia. 


Washington. 







§ 766. Negligence of defendant 

The burden of proof to show negligence on the part of 
defendant is on plaintiff.^' 

In all cases where it is alleged that an injury was 
occasioned an employee by or through the negligence of 
the master or one for whose negligence he is responsible, 
the burden is upon the party alleging negligence to afiSrma- 
tively establish it by a fair preponderance of the evidence. 
If he establishes a prima facie case and no proof is offered 
to the contrary, he should prevail. Therefore, the other 
party, if he would avoid the effect of such prima facie 
case, must produce evidence of equal or greater weight. 



13. This proposition is so ele- 
mentary that it is deemed wholly 
mudftoessary to cite all the multl- 
tade of oases so holding. See Nor- 
folk ft W. R. Co. y. Williams, 89 
Va. 165, 15 S. E. 522; Cully v. 
Northem Pao. R. Co., 35 Wash. 
241, 77 Pao. 202. It seems that the 
Nebraska court held that proof of 
the defect is evidence of negligence 
and that the burden after such 
proof is upon the defendant to 
show want of negligence. Thus 
where a station agent was injured 
in the attempt to set a defective 
brake, it was said that if the brake 
became out of repair a short time 
before the JEUMsident, the contention 
that the company had no notice 
of it, and could not by the exercise 
of ordinary care have discovered 
it before ^e accident are matters 



of defense. Chicago, B. & Q. R. 
Co. V. Kellogg, 54 Neb. 209, 74 
N. W. 627. Subsequently, upon a 
rehearing, the court state that they 
did not intend to be understood as 
holding the burden was upon the 
defendant to show want of knowl- 
edge and state the burden is upon 
the plaintiff. Chicago, B. ft Q. 
R. Co. V. KeUogg, 55 Neb. 748, 
76 N. W. 462. An employee in- 
jured by the explosion of a boiler 
was held to have the burden of 
showing that the boiler was unfit 
for the use to which it was applied, 
and that the explosion was owing 
to particular defects pointed out. 
Texas & Pacific R. Co. v. Thomp- 
son, 71 Fed. 531; Snodgrass v. 
Carnegie Steel Co., 173 Pa. St. 
228, 33 AU. 1104 



2036 



Masteb and Sebyant. 



§766 



to balance or control it. Still the proof upon both sides 
applies to the affirmative or neg:atiye of one and the same 
proposition, and the party whose case requires the proof 
of that fact has all along the burden of proof. It does not 
shift though the weight of either scale may at times 
preponderate.^* 

The plaintiff must prove something which at least 
warrants an inference of negligence on the part of the 
defendant and cannot l^ase his case upon facts just as 
consistent with care and prudence as the opposite. ^^ 

And where the evidence is equally consistent with 
either view, with the existence or non-existence of negli- 
gence, it is not competent, as held by many courts of high 
standing and ability, to leave the matter to the jury, 
since in such case the party who affirms negligence has 
failed to estabUsh it.^^ 

The cause of injury being thus left in doubt, is not 
proved, and hence cannot be attributed to the defend- 
ant's negligence or fault. ^^ 

The plaintiff being required to negative the presumption 
in favor of the defendant of the exercise of due care, it is 
not enough that he show an injury sustained, but he must 
go further and show some specific act of negligeuce. ^* 

Thus where the cause of a car dumping while in motion 
was unexplained and was as consistent with the failure 
of co-employees to properly secure and fasten the hooks 
which held it in place, as of neglect of duty in inspecting 
and keeping the car in repair, there being no defect in the 
car to which the accident might be attributable, the 



li. Powers v. Russell, 13 Piok. 
26; Klunk v. Hooking Valley R. 
Co., 74 Ohio St. 125, 77 N. E. 752; 
Galloway v. Chicago, R. I. & 
P. R. Co., 234 m. 474, 84 N. E. 
1067; Brownfield v. Chicago, R. 
I. & P. R. Co., 107 la. 354. 

15. Hayes v. Railroad Co., 97 
N. Y. 259; Baulic v. Railroad Co., 
59 N. Y. 357, 17 Am. Rep. 325; 



Railroad Co. v. Schartle, 97 Pa. 
St. 450, 2 Am. & Eng. R. Cases 
158. 

16. Cotton V. Wood, 8 C. B. 
(N. S.) 568; Thompson on Negli- 
gence p. 364. See also infra, § 795. 

17. Saner v. Union Oil Co., 43 
La. Ann. 699, 955, 9 So. 566. 

18. Soderman v. Kemp, 145 
N. Y. 427, 40 N. E. 212. 



§ 766 BuBDBN OP Proof. 2037 

plaintiff's case against the company for injuries sustained, 
was not proven." 

An instruction that "where the employee is injured 
through any appliance or surroundings of the business, 
and it does not appear that the employee was at fault, the 
burden is on the employer to show that he himself was 
free from fault," was held error and the rule was said to be 
that the plaintiff must in the first instance prove enough 
to show a fair preponderance of negUgence and of resulting 
injury to himself.** 

It was said that where a cause of action is shown which 
might produce a given accident, and the fact appears that 
an accident of that particular character did occur, it may 
be a warrantable inference, in the absence of showing any 
other cause, that the one Imown was the operative agency 
in bringing about such result. '^ 

Where, however, an accident may be attributed to two 
or more causes only one of which can be chargeable to the 
neglect of the master, the burden is upon the plaintiff to 
show the real cause. ^^ 

Presumption of due care on part of employee does 
not change burden. 

The presumption that the deceased was in the exercise 
of due care, where in an accident he received injuries re- 
sulting in his death, there being an absence of witoesses to 
the accident, which is applied by some courts where the 
question of his contributory negligence is involved, does 
not relieve the plaintiff, in an action against the employer 
to recover damages therefor, from proving defendant's 
negligence, and that such negligence was the cause of the 
death." 

19. SodermazL v. Kemp, 145 N. 22. Meehan v. Great Northern 
Y. 427, 40 N. E. 212. R. Co., 13 N. Dak. 432, 101 N. W. 

20. LindaU V. Bode, 72 Cal. 245, 183. 

13 Pao. 660. 23. Powers v. Pere Marquette 

21. Rase v. Minneapolis St. P. R. Co., 143 Mioh. 379, 106 N. W. 
A 8. 8. M. R. Co., 107 Minn. 260, 1117. See also Looney v. Metro- 
120 N. W. 360. potitan R. Co., 200 U. S. 480. 



2038 Mastbb and Sebvant. ^ 766 

Particular facts. 

It follows from the general rule that plaintiff must show 
that defendant failed to exercise ordinary care, that he 
must show as an element thereof that the master knew or 
should have known of the defect, omission or condition 
causing the injury.** 

If the alleged negligence consists in furnishing defective 
appliances, plaintiff must prove that they were in fact 
defective, and that defendant knew or ought to have 
known of the defect. So, whatever negligence is relied on, 
whether the furnishing of an unsafe place to work, or un- 
safe appliances, or the failure to instruct and warn, or the 
failure to make and promulgate rules, or negligence in 
selecting an incompetent co-servant, the burden is on 
plaintiff to prove sufficient facts to show the negligence of 
defendant in that particular. For instance, if negligence 
in employing or retaining the alleged negUgent co-servant 
is relied on, the burden is on plaintiff to show (1) that the 
servant was in fact incompetent; (2) that defendant knew 
or should have known of such incompetency, and (3) 
that the incompetency was the proximate cause of the 
injury. ** 

However, a recovery is not precluded because the par- 
ticular defect or omission causing the accident is not 
specifically pointed out.** 

Proof of injury alone. 

It is well settled that the fact of the injury ordinarily 
carries with it no presumption of negligence on the part 
of the employer, and it is an affirmative fact for the 
injured employee to establish that the employer has been 

24. Ohio & M. R. Co. v. Heaton, River Lumber Co., 154 Mass. 407, 
137 Ind. 1, 35 N. E. 687; Williams 28 N. E. 352; Atchison, T. & S. F. 
▼. St. Louis & S. F. R. Co., 119 R. Co. v. Lannigan, 56 Kan. 109, 
Mo. 316, 24 S. W. 782; Hudson v. 42 Pao. 343. An employee injured 
•Charleston, C. & C. R. Co., 104 by defective machinery need not 
N. C. 491, 10 S. E. 669. show the precise nature of the 

25. See volume 1. defect. Nelson v. St. Paul Plow 

26. Mooney v. Connecticut Works, 57 Minn. 43, 58 N. W. 868. 



^767 



BUBDEN OP PbOOP. 



2039 



guilty of negligence;'^ and in this respect the law is dif- 
ferent from the case of a passenger injured by a common 
carrier. 

Rule of res ipsa loquitur as changing burden. 

The rule of res ipsa loquitur, as explained hereafter, '^ 
does not change the burden of proof. It stiU remains with 
the plaintiff to establish negligence by a preponderance 
of evidence. But he may offer the fact of the accident as 
some evidence of negligence. ^ 

§ 767. Negligence of defendant as cause of injuries. 

Plaintiff has not only the burden of proving the negli- 
gence of defendant but must also prove that such negli- 
gence was the cause of his injuries. ^ 



27. Patton v. Texas & P. R. 
Co., 179 U. S. 658; LouisviUe & 
N. R. Co. V. Allen's Admr., 78 
Ala. 794; Short v. New Orleans & 
N. E. R. Co., 69 Miss. 848, 13 So. 
826; Biymer v. Southern Pao. R. 
Co., 90 Cal. 496, 27 Pao. 371 ; Kan- 
sas Pao. R. Co. V. Salmon, 11 Ean. 
83; Redmond v. Delta Lumber 
Co., 96 Mioh. 545, 55 N. W. 1004; 
Knight v. Cooper, 36 W. Va. 232, 
14 S. E. 999; Smith v. Memphis 
A L. R. R. Co., 18 Fed. 304. 

28. See infra, § 797. 

29. Morrisett v. Elizabeth City 
Cotton Mills, 151 N. Car. 31, 65 
8. E. 514, holding that if no other 
evidence is offered, the jury may 
find for or against plaintiff as they 
see fit. 

30. Walker v. Louis-Werner 
Sawmill Co., 76 Ark. 436, 88S. W. 
968; Davis v. Meroer Lumber Co., 
164 Ind. 413, 73 N. E. 899; Trigg 
▼. Ozark Land & Lumber Co., 187 
Mo. 227, 86 S. W. 222; Bowers v. 
Bristol Gas & Eleetrio Co., 100 
Va. 533, 42 S. E. 296; Cotton MiUs, 
138 N. C. 169, 50 S. E. 561; BU- 



nois Central R. Co. v. Cathey, 70 
Miss. 332, 12 So. 253; Neeley v. 
Southwestern Cotton Seed Oil Co., 
130 Kl. 356, 75 Pao. 537, 64 L. R. 
A. 145. The trial court having 
charged: "It is contended on the 
part of the plaintiff, that the failure 
to give proper warning, and in- 
struction to the plaintiff, was the 
proximate cause of the injury; on 
the part of the defendant, however, 
this is denied, and it is contended 
that this was not the proximate 
cause of the injury, but the proxi- 
mate cause of the injury was the 
boy's own negligence and care- 
lessness. It is for you to determine 
what the fact was. The burden of 
proof on this question is on the 
defendant." The supreme oourt 
held that the question here men- 
tioned did not refer to the con- 
tributory negligence of the de- 
fendant, but to the question whether 
the lack of warning was the proxi- 
mate cause of plaintiff's injury, 
and hence was error, because the 
plaintiff always has the burden of 
showing that the negligence com- 



2040 Masteb and SsBVAin!. ^768 

So where the negligence of a fellow-servant for which 
the master is not liable concurs with the negligence of the 
master, the burden is on plaintiff to show that the mas- 
ter's negligence was the proximate cause of the injury.'^ 

§ 768. Assiuned risk. 

In most jurisdictions the burden of proving that the 
injured servant assumed the risk is on defendant, but in 
some states the burden is on plaintiff to show that he did 
not have knowledge of the risk. But even in those juris- 
dictions where the burden is on defendant, yet where 
defendant shows knowledge of the risk on the part of 
plaintiff, he cannot recover unless he meets the burden 
of showing that he comes within some exception to the 
general rule of assumed risk.'^ 

In a few cases the court has clearly distinguished be- 
tween "ordinary" and "extraordinary" risks so far as 
burden of proof is concerned. It is said as to the former 
that if plaintiff merely proves that the injury sustained 
was caused by some risk ordinarily incident to the em- 
ployment, he fails to recover because he has failed to 
prove negligence; but if the risk is an "extraordinary" 
one, i. e., one arising from the negligence of the employer, 
then the defense of assumed risk is an afiBrmative one 
which must be pleaded and proved by defendant." 

Inasmuch as the burden in respect to whether an em- 
ployee assumed the risk of injury in a particular case, is 
not the same in all jurisdictions, the matter will be con- 
sidered by states. In some courts the rule governing con- 
tributory negligence is applied, and the burden is cast upon 
the plaintiff to negative assumption of the risk, while in 
others the burden is upon the defendant to show that the 

plained of was the proximate cause see Ford v. Chioago, R. I. & P. R. 

of the Injury. Schumacher v. Co., 106 la. 86, 71 N. W. 332. 

Tuttle Press Co., 142 Wis. 631, 33. Martin v. Des Moines Ed- 

126 N. W. 46. ison light Co., 131 la. 724, 106 

31. Union Pac. R. Co. v. Call*- N. W. 359; Tucker v. Northern | 
ghan, 56 Fed. 988, 6 C. C. A. 205. Pao. T. Co., 41 Oreg. 82, 68 Pac. 

32. In support of last statement, 426. To same effect, Mace ▼. | 

Boedker & Co., 127 la. 721. i 



§768 



BuBDEN OF Proof. 



2041 



risk was assumed. In some other jurisdietions, the bm'den 
is cast upon the defendant to show the risk was assumed, 
although the burden is upon the plaintifl in respect to his 
contributory negligence. 

Arkansas. 

Where a servant is injured in consequence of the negli- 
gence of the master, the latter, in order to show that the 
servant assumed the risk, must prove that the servant 
voluntarily subjected himself to the new danger with full 
appreciation thereof.'^ 

Alabama. 
The burden of proving knowledge on the part of 
plaintiff is on defendant. '^ 

California. 

It is not necessary in Cahf omia for the plaintiff to aver 
or prove that he himself was without fault or that he did 
not have knowledge of the defect in the appliance. ^^ 

The burden is upon the defendant to show that the 
employee either knew or should have known of the defects 
in or their condition.'^ 

Colorado. 
The burden of pl-oving knowledge of the danger on the 
part of the employee is on the employer. '* 

Connecticut. 
Inasmuch as it is held that the complaint must show 
that the risk was not assumed, '^ it is probably true that 
the burden is on plaintiff. 



34. Chootaw, 0. & G. R. Co. v. 
Jones, 77 Ark. 367, 92 S. W. 244, 
4 L. R. A. 837, n. s. 

35. See Southenr Car & Foundry 
Co. V. Jennings, 137 Ala. 247, 34 
So. 1002; E. E. Jackson Lumber 
Co. V. Cunningham, 141 Ala. 206, 
37 So. 445. 

36. Magee v. N. P. C. R. Co., 
78 Cal. 430, 21 Pao. 114, 12 Am. 
St. Rep. 69; Robinson v. Western 
Pao. R. Co., 48 Cal. 209; Mo- 



Quiken v. Central Pao. R. Co., 50 
CaJ. 7. 

37. Alexander v. Central L. & 
M. Co., 104 Cal. 532, 38 Pao. 410; 
Bjorman v. Fort Bragg Red Wood 
Co., 104 Cal. 626, 38 Pac. 451. 

38. Williams v. Sleepy Hollow 
Min. Co., 37 Colo. 62, 86 Pao. 337, 
7 L. R. A. 170, n. s. 

39. Elie y. Cowles & Co., 82 
Conn. 236. 



2042 Masteb and Sebyant. ^ 768 



Delaware. 

Inasmuch as it is held that the defense need not be 
negatived, it is assumed that the burden of proof is on 
defendant. ^ 

Florida. 

Assumption of risk is an affirmative defense to be 
specially pleaded and proved by defendant. ^^ 

Georgia. 

A declaration under the common law in an action by an 
employee against the master for injuries received in the 
employment, must allege not only that the servant was 
ignorant of the defect, but also that he could not have 
discovered it by ordinary diligence, and that the master 
knew or ought to have known of it.*' 

In other words, the burden of proving the risk was not 
assumed is on plaintiff. The rule under the statutes as 
amended in 1909, where defendant is a railroad com- 
pany, is considered hereafter.*' 

Idaho. 

Before the servant can recover he must show that the 
injury did not arise from a defect obvious to himself or 
which in the exercise of ordinary care he might have 
known. He must also show it was not from a hazard inci- 
dent to the business.** 

Illinois. 

The rule has often been stated in this court to be that 
the burden of proof is upon the plaintiff to show not only 
that an appliance is defective and the master had notice 
thereof or should have had notice, but also that the serv- 

40. See Sweeney v. Jessup & W. C. R. Ck>. v. Midler, 113 Ga. 
Moore Paper Co., 4 Pennew. (Del.) 15, 38 S. £. 338; Roland v. Tift, 
284, 54 Atl. 954. 131 Ga. 683, 63 S. E. 133. 

41. Southern Turpentine Co. v. 43. See infira . 

Douglass, — Fla. — , 54 So. 385. 44. Minty v. Union Pao. R. Co., 

42. Central of Ga. R. Co. y. 2 Idaho, 437, 21 Pao. 660, 4 L. R. 
Ruff, 127 Ga. 200; Charleston & A. 409. 



^768 



BUBDBN OP PbOOP. 



2043 



ant did not know of the defect and had not equal means 
of knowing with the master. ^^ 

Yet the court has stated "that the alleg:ations of due care 
in the plaintiff's declaration negatived his knowledge of 
the defects by which he was injured, and the declaration 
stands as if containing an express allegation that plaintiff 
had no such knowledge. If plaintiff had knowledge of the 
defects through which his injury was received, the fact of 
such knowledge is matter of defense." ^^ 

It is difficult to understand how any allegation on the 
part of the plaintiff as to his knowledge or want of knowl- 
edge is material if such matter is purely defensive, but 
it seems, however, such ruling was made in two prior cases 
at least. ^^ 

Indiana. 

In Indiana the burden is ui>on the plaintiff to show that 
he did not assume the risk of danger, and absence of knowl- 
edge of the defect of which he complains. ^^ 



45. Ro88 y. Chicago, R. I. & P. 
R. Ck>., 243 m. 440; Lake Erie ft 
W. R. Co. V. Wilson, 189 m. 89, 
50 N. E. 573; Montgomery Coal 
Co. V. Barringer, 218 m. 329, 75 
N. E. 900; Chicago ft E. I. R. Co. 
▼. Heery, 203 DL 492, 68 N. E. 74; 
Elgin G. & E. R. Co. v. Meyera, 
226 m. 358, 80 N. E. 897; George 
B. Swift Co. V. Gaylord, 229 DL 
330, 82 N. E. 299. 

46. City of La Salle v. Kost- 
ka, 190 ni. 130, 60 N. E. 72. 

47. Railroad Co. v. Hines, 132 
IE. 161, 23 N. E. 242; Railroad Co. 
y. Simmons, 38 m. 242. 

48. Chicago ft East R. Co. v. 
Wagner, 17 Ind. App. 22, 45 N. E. 
76; Clark County Cement Co. v. 
Wright, 16 Ind. App. 630, 45 N. 
E. 817; Qeveland, C. C. ft St. L. 
R. Co. y. Parker, 154 Ind. 153, 56 



N. E. 86. It is incumbent upon 
the plaintiff to negatiye in his com- 
plaint knowledge on his i>art of 
the tmskilfulness or incompetency 
of f ellow-seryants, where the graya- 
men of his complaint is the em- 
ployment or retention of such by 
the master. He must also negatiye 
knowledge on his part of the want 
of safety or defectiye condition 
of appliances which he alleges are 
the cause of his injuries. Indiana 
B. ft W. R. Co. y. Dailey, 110 Ind. 
75, 10 N. E. 631; Atlas Engine 
Works y. Randall, 100 Ind. 293, 50 
Am. Rep. 798; Louisyille, N. A. 
ft C. R. Co. y. Corps, 124 Ind. 
427, 24 N. E. 1046; Louisyille, N. 
A. ft C. R. Co. y. Sandford, 117 
Ind. 265, 19 N. E. 770; Eyansyille 
& T. H. R. Co. y. Duel, 134 Ind. 
156, 33 N. E. 355. 



2044 Masteb and Sebyant. ^ 768 

Iowa. 

The burden is upon the defendant to prove that the 
plaintiff had knowledge of the danger to which he was 
exposed. It is an afBrmatiye defense. When the de- 
fendant shows that the plaintiff knew of the dangerous 
condition of the road or machinery, which he aided to 
operate, it is then incumbent upon the plaintiff to show 
that he was in some manner justifiable in exposing him- 
self to the danger. *• 

If a company wishes to avail itself of the fact that an 
employee waived its negligence by remaining in its em- 
ploy with knowledge of the defects, and without objection 
and without promise of their being remedied, it must plead 
such facts as a defense, and establish them afiBrmatively 
by evidence, and it is not incimibent upon the plaintiff 
to negative them in the first instance.^ 

An admission in a reply that the injured employee 
continued at work with knowledge of the defective appli- 
ance or place of work, standing alone, admits a waiver 
of that defect, and hence the defendant is not required to 
prove the waiver.^* 

Kentucky. 

The averment of want of knowledge of the dangerous 
condition of premises or appliances upon the part of an 
injured servant is necessary to the statement of a cause of 
action. The question of knowledge is distinct from that 
of contributory negligence. The reasoning of the court is 
that this residts from the rule that the master is not an 
insurer of the safety of the servant, nor a guarantor that 
the appliances are absolutely safe, and that such conditions 
as are known to the servant he assimies the risk of.^^ 

49. Costes, Admz. v. Burlington, P. R. Co., 63 Iowa, 562, 14 N. W. 
C. R. & N. R. Ck>., 62 Iowa, 486. 340, 19 N. W. 680. 

See also Calloway v. Agar Packing 61. Ford v. Chicago, R. I. & 

Co., 129 la. 1 ; Arenachield v. Pac. R. Co., 106 la. 85, 71 N. W. 

Chicago, R. I. & P. R. Co., 128 332. 

la. 677; Shebeok v. National 52. Bogensohutz v. Smith, 84 

Cracker Co., 120 la. 414. Ky. 330, 1 S. W. 578; WilUe v. 

50. Mayes, Admr. v. C. R. I. & East T. C. Co., 27 Ey. L. Rep. 335, 



^768 



BUHDEN OF PbOOP. 



2045 



But in actions under the Kentucky statute and consti- 
tution to recover damages for death by the negligent or 
wrongf id act of defendant, the burden of proof is upon the 
defendant to show assumption of risk. The rule is not 
applicable where death does not result.^' 

Louisiana. 

The burden of proof is upon the defendant to prove that 
the employee knew of the danger, and notwithstanding 
exposed himself willingly and deliberately to it.^^ 

Maine. 

It is held that the complaint must allege that the defect 
was unknown to plaintiff, ^^ and hence the burden of proof 
is on plaintiff* 

Michigan. 

Knowledge on the part of an employee of the existence 
of defects in appliances was held to be matter of defense/* 

The burden of proof is upon the master, where a servant 
is injured in consequence of a risk not ordinarily incident 
to die emplojmient, growing out of the master's negli- 
gence, to show the servant knew and understood the in- 
creased danger.*^ 

Minnesota. 

The burden is upon the defendant to show assumption of 
risk. It need not be negatived in the complaint. '* 



S4 8. W. 1166. But see Chesapeake 
& N. R. Co. y. Venable, 111 Ey. 
41, 63 8. W. 35. 

53. Leziiigton & Carter Min. Co. 
y. Stephen's Admr., 20 Ey. L. Rep. 
606, 47 8. W. 321. 

54. Myhan y. Louisiana E. L. ft 
P. R. Co., 41 La. Ann. 964, 6 8o. 
799, 17 Am. 8t. Rep. 436, 7 L. R. 
A. 172; Parrenin y. Crescent City 
8. & 8. Co., 120 La. 75, 44 8o. 990. 

55. Bnzzell y. Laoonia Mfg. Co., 
48 Me. 113, 77 Am. Deo. 212. 

56. Swobodo y. Ward, 40 Mioh. 
420. 



57. McDonald y. Champion Lron 
& Steel Co., 140 Mich. 401, 103 
N. W. 829. If injured by extn^ 
ordinary or unusual risk due to the 
master's negligence, the master has 
the burden of showing that the 
servant knew of the tmusual 
danger. Cristianelli y. Saginaw 
Min. Co., 154 Mich 423, 117 N. W. 
910. 

58. Thompson y. Great Northern 
R. Co., 70 Minn. 202, 72 N. W. 
962. 



2046 



Masteb and Sebyakt. 



§768 



Assumption of risk and contributory negligence are 
afBrmatiye defenses the burden of pleading and establish- 
ing of which rests ui>on the defendant.^* 

The rule in this state is substantially the same as in 
Iowa. The burden is upon the defendant to plead and 
prove knowledge on the part of the plaintiff of defects 
in appliances causing him injury.^ 

Montana. 
The burden is on defendant. ^^ 

Nebraska. 

If the assumption of a risk not usually and ordinarily 
incident to the service, is relied on as a defense in an action 
against the master for negligence, such assumption of risk 
must be specially pleaded by defendant. ^^ 
And the burden of proof is upon the master.^' 
But if the risk claimed to have been assumed is an 
ordinary as distinguished from an extraordinary risk, the 
assumption must be negatived in the complaint. ^^ 

New Jersey. 

The defense need not be negatived in the complaint. 
The burden of proof is on defendant.'* 

New York. 

The burden of proof is upon the defendant to show that 
the plaintiff assumed the risk.*' 



59. Fisher v. Central Lead Co., 
156 Mo. 479, 56 S. W. 1107; Duerst 
V. St. Louis Stampiiig Co., 163 Mo. 
607, 63 S. W. 827. 

60. Thorpe v. Missouri Pao. R. 
Co., 89 Mo. 650, 2 S. W. 3; Young 
V. Shiokle H. & H. lion Co., 103 
Mo. 324, 15 S. W. 771. 

61. Nord V. Boston & M. C. C. 
& S. M. Co., 33 Mont. 464. 

62. Maxson v. J. I. Case Maoh. 
Co., 81 Neb. 546, 116 N. W. 281, 
16 L. R. A. 963; Evans Laundry 



Co. V. Crawford* 67 Neb. 153, 
93 N. W. 177. 

63. Grimm v. Omaha Eleo. L. 
& P. Co., 79 Neb. 395, 114 N. W. 
769. 

64. Missouri Pao. R. Co. t. 
Baxter, 42 Neb. 793, 802. 

65. Towler v. New Jersey Ada- 
mant Mfg. Co., 79 N. J. L. 140, 74 
Atl. 279. But see Grover v. New 
York, S. & W. R. Co., 76 N. J* 
L. 237, 69 AtL 1082. 

66. Jenks v. Thompson, 179 N. 
Y. 20, 71 N. E. 266; Hunt ▼. Dex- 



§ 768 BuBDBN OP Pboop- 2047 

North Carolina. 

Whenever a servant, whose conduct has been blame- 
less, sustains an- injury by reason of an implement put 
into his hands by the master or his agents to be used in the 
prosectuion of his work, a responsibility must attach to the 
master. It is true he may free himself of this responsi- 
bility by showing that he has at all times been diligent and 
circumspect as well in the choice of his associates as in the 
selection and preservation of the implements to be used 
by him.*^ 

It was held that where the allegation is that a party has 
been negligent and careless in respect to a matter wherein 
he is bound to use care and diligence, the necessary and 
legal implication is that he knew, or by reasonable dili- 
gence might have known, of the material defects and im- 
perfections that gave rise to the injury complained of.** 

It has recently been held, however, that assumption of 
risk is a matter of defense.*' 

Ohio. 

In an action by a servant against the master for injury 
resulting from the negligence of the latter in furnishing 
appUances or in caring for the premises where the work is 
done, the plaintiff must aver want of knowledge on his 
part of the defects causing the injury, or that, having 
such knowledge, he informed the master and continued 
in his employment upon a promise, express or implied, to 
remedy the defects; an averment that the injury occurred 
without fault on his part is not sufficient.^* 

The act of 1890 (87 Ohio Laws, p. 149) has the effect 
to charge the master with knowledge of the defect causing 
injury, and prima facie evidence of negligence. The force 

ter Sulphite Pulp & Paper Ck>., 68. Waxner v. Western N. C. R. 

183 N. Y. 644, 76 N. E. 1097; Co.. 94 N. C. 250. 

Dowd V. N. Y. O. & W. R. Co., 69. Lloyd v. Haues, 126 N. Car. 

170 N. Y. 459, 63 N. E. 641. 539, 35 S. E. 611 ; Dorsett v. Oem- 

67. Cowles V. Riohmond & D. ent-Ross Mfg. Co., 131 N. C. 254, 

R. Co., 84 N. C. 309, 37 Am. Rep. 42 S. E. 612. 

620. 70. Coal & Car Co. v. Norman, 

49 Ohio St. 598. 
3 M. ft S.' 



2048 



Mastsb and Sebyant. 



§768 



of this statute is wholly expended in relieving the servant 
of the duty of establishing that the master had or should 
have had notice of the defect. His duty to establish that 
the appliance was defective and that he did not know of 
the defect, remains unchanged. ^^ 

Oregon. 

While the burden of proof is on the plaintiff to show 
that the appliance was defective, and that the master had 
notice thereof, or knowledge, or ought to have had, the 
burden of proof is on the defendant to show that the 
servant did know of the defect, and that his negligence 
contributed to the injury.^* 

Rhode Island. 

Facts negativing assumption of risk by plaintiff must 
be alleged in the declaration.^' 

South Carolina. 

Knowledge on the part of a servant of the defects which 
caused him injury is a matter of defense. It constitutes no 
part of the plaintiff's cause of action. The court classes 
knowledge as contributory negligence as they say, ''But this 
is upon the ground that he has by his own negligence con- 
tributed to the injury of which he complains, and it is well 
settled, in this state at least, that contributory negligence 
is an aflfirmative defense."^^ 

Texas. 

The burden is on defendant to allege and prove that 
plaintiff assumed the risk.^* 



71. Hesse v. Ck>lumbu8 8. & H. 
R. Co., 58 Ohio St. 167, 50 N. E. 
354. 

72. Johnston v. Oregon S. L. 
& U. N. R. Co., 23 Grog:. 04, 31 
Pac. 283; Tuoker v. Northern Pao. 
T. Co., 41 Greg. 82, 68 Pao. 426. 

73. Dalton v. Rhode Island Co., 
25 R. I. 474, 57 AtL 383 (explain- 
ing Lee V Relianoe Mills Co., 21 
R. I. 322, 43 Atl. 536.) 



74. Carter v. Oliver Oil Co., 34 
8. C. 211, 13 8. E. 419, 27 Am. 8t. 
Rep. 815; Donahue v. Railroad Co., 
32 8. C. 200; Montgomery v. Sei^ 
board Air line Ry., 73 S. C. 503, 
53 8. E 087. 

75. Missouri, K. & T. R. Co., of 
Texas v. Jones, 35 Tex. Civ. App. 
584, 80 S. W. 852; Price v. Con- 
sumers' Cotton Oil Co., 41 Tex. 
Civ. App. 47, 00 8. W. 717. 



§768 



BUBDEN OF PbOOP. 



2049 



Utah. 
The burden is on defendant.^* 

United States courts. 

The defense need not be negatived in the complaint. ^^ 
Evidence that plaintiff knew of the defect which 

caused the injury and assumed the risk is inadmissible 

when defendant fails to plead such facts. ^^ 

Vermont. 

If it be assumed that a risk is extraordinary, the burden 
is upon the plaintifF to show that he did not assume it, by 
proving that he did not know and comprehend it and that 
it was not plainly observable so that the law charged him 
with comprehending it.^' 

Virginia. 

The servant must use ordinary care to avoid injuries to 
himself, it was said and to entitle him to recover for the 
defects in the appliances he is ordinarily required to show 
(1) that the appUance in question was defective; (2) 
that the employer knew or ought to have known of the 
defect; and (3) that the employee did not know of it. 
The general nde undoubtedly is, that the plaintiff need 
not aver and prove that he was not guilty of contributory 
n^ligence. But he must prove, and therefore must aver, 
that the injury complained of did not result from the 
ordinary hazards of the business which he is presumed to 
have voluntarily assumed, nor from his own fault, but 
from a cause which brings the case within the exception 
to the general rule which exempts the employer from 



70. Faulkner v. Mammoth Min. 
Co., 23 Utah, 437, 66 Pao. 799. 

77. Pennsylvania R. Co. v. 
Fontall, 150 Fed. 893. 

78. Oregon Short line & U. N. 
R. Co. y. Traoy, 66 Fed. 931. A 
aervant is not presumed to know of 
defoots in a fuse being used by 
bim to explode a blast where not 



obvious. His knowledge or facts 
charging him with knowledge, are 
matter of defense. Conroy v. 
Oregon Construction Co., 23 Fed. 
71. 

79. Hatch v. Reynolds Estate, 
80 Vt. 294, 67 AU. 816; FowUe's 
Admx. V. McDonald, Cutter & 
Co., 82 Vt. 230, 72 Atl. 989. 



2050 



Master and Sebyant. 



§768 



liability to the employee for injuries received by the latter 
in the course of his employment.^ 

In a later case, it is held that it is unnecessary in the 
declaration on the part of the employee to allege his ignore 
ance of the danger to which he was exposed. ^^ 

When the servant shows that his injuries were in con- 
sequence of an increased risk not incident to his ordinary 
employment, but growing out of the master's negligence, 
the burden of proof is on the master to show that the 
servant understood the increased dangers.^' 

Washington. 

Assumption of risk is an affirmative defense and must 
be pleaded. •* 

West Virginia. 

In West Virginia, it is not necessary to negative assump- 
tion of risk in the complaint, ^^ but the decisions are not 
entirely clear as to burden of proof.'* 



80. Norfolk & W. R. Co. v. 
Jaokson'8 Admr., 85 Va. 489, 8 
8. B. 370. 

81. It was stated the master is 
exempt from liability where the 
danger is known to the servant, 
which is but another form of 
stating that the plaintiff cannot 
recover for injuries to which his 
own negligence has contributed. 
This is true, but contributory 
negligence is matter ot defense 
and need not be negatived by the 
plaintiff in his declaration. Rich- 
mond Granite Co. v. Bailey, 02 
Va. 554. 24 S. E. 232. 

82. Norfolk & W. R. Co. v. 
Ward, 90 Va. 678, 19 S. E. 849, 
44 Am. St. Rep. 945, 24 L. R. A. 
717. 

83. Walker v. McNeill, 1 7 Wash. 
582, 50 Pac. 518. 

84. Hoffman v. Dickinson, 31 
W. Va. 142. 



85. A servant who seeks to re- 
cover for an injury which he claims 
resulted from defective machinery 
or appliances takes upon himself 
the burden of establishing negli- 
gence on the part of the master, 
and due care on his part, and to 
entitle him to recover he must 
overcome two presumptions; (1) 
That the master has discharged 
his duty to him by providing suit- 
able machinery and appliances for 
the business and keeping them in 
condition, and (2) that he assumed 
all the usual and ordinary hazards 
of the business. Such servant 
takes upon himself the burden of 
showing that the master had notice 
of the defects complained of, or in 
the exercise of that ordinary care 
which he is bound to observe, he 
would have known of, and that 
the servant was ignorant of, such 
defect, and had not equal means of 



§769 



BUBDBN OP PbOOP. 



2051 



Wisconsin. 

Knowledge on the part of an employee of the existence 
of defects in appliances was held to be matter of defense.^* 

In an action by an employee against a railroad com- 
pany for personal injuries, where the plaintiff's right of 
action depends upon his ignorance of certain conditions, 
as defects in a switch engine and unsldlfulness of the 
engineer, the complaint need not aver such ignorance, 
but it is for the defendant to aver and prove knowledge 
on the part of the plaintiff. ^^ 

§ 769. Contributory negligence. 

While in some states the burden of proving the absence 
of contributory negligence is on plaintiff, yet in most 
jurisdictions the burden of proving contributory negli- 
gence is on defendant. 

But even in some of those states where contributory 
negligence is ordinarily a defense which must be alleged 
and proved by defendant, yet if a statute gives a new 
cause of action provided the plaintiff has not been guilty 
of contributory negligence, it has been held that the bur- 



knowledge. Johnson v. Chesa- 
peake & O. R. Co., 36 W. Va. 73, 
14 S. E. 432. See also Berns v. 
Gas Coal Co., 27 W. Va. 288, 65 
Am. Rep. 304; Humphreys y. 
Newport News & M. V. Co., 33 
W. Va. 135, 10 S. B. 39. 

86. Hulehan v. G. B. W. & St. 
P. R. Co., 68 Wis. 520. 32 N. W. 
592. 

87. Cole V. Chicago & N. W. R. 
Co., 67 Wis. 272, 30 N. W. 600. The 
employee is only presumed to 
assume the dangers usually at- 
tendant upon his employment; 
and when he shows that he has 
been injured by a oause or danger 
not usually or reasonably attend- 
ant upon his employment, he is 
then entitled to reoover, unless it 
is shown that he knew of such 



unusual and unreasonable danger, 
and fully comprehended its nature 
at the time of his employment or 
before the accident happened. In 
such case there is no presumption 
that he assumed the unusual risk, 
and the burden of proof is on the 
defendant to show affirmatiyely 
that he did, to the same extent 
that it is on the defendant to show 
any other contributory negligence 
on the part of the plaintiff. The 
assumption of an unusual risk in 
any employment by the employee 
is in the nature of negligence on 
his part, which, like any other 
contributory negligence, prevents 
his recovery. Nadau v. White 
River L. Co., 76 Wis. 120, 43 N. 
W. 1135, 20 Am. St. Rep. 29. 



2052 



Masteb akd SsBVAirr. 



§769 



den of negativing contributory negligence is on plain- 
tiff,'* although there is authority to the contrary. *• 

It must be remembered, however, that whether the 
burden is on plaintiff or defendant, it is universally held 
that if the evidence on behalf of plaintiff itself shows that 
he was guilty of contributory negligence, a non-suit must 
be granted on motion of defendant. 

Alabama. 

Contributory negligence is defensive matter, which 
must be pleaded and proved by the defendant. The 
complaint in personal injury cases need not negative the 
fact that the plaintiff knew, or by reasonable diligence 
might have known, the defect or negligence charged.^ 

Arizona. 

In an action for wrongful death the burden of proving 
contributory negligence is on defendant.'^ 

Arkansas. 

Contributory negligence is a defense to be affirmatively 
proved. It will be presumed that the injured party was 
in the exercise of due care untU the contrary is made to 
appear.'* 



88. Barksdale ▼. Laurens, 58 
S. C. 413. See also Shea v. Boston 
& M. R. Co., 154 MasP. 31, 27 
N. B. 672. 

89. Lorimer v. St. Paul City R. 
Co., 48 Minn. 391. 51 N. W. 125; 
Dugan V. Chicago, St. Paul, M. & 
O. R. Co., 85 Wis. 609; Soard v. 
Western Anthracite Coal & M. Co. , 
92 Ark. 502. In the Wisconsin case, 
the fellow-senrant statute author- 
ized a recovery against a mliroad 
company where the negligence was 
that of certain specified employees, 
where the injury was "without 
contributory negligence" on the 
part of the injured servant. The 
court say: "The mere fact that 
the l(»gislature embodied in the 



act in question the words 'without 
contributory negligence on hia 
part,' when the court would nec- 
essarily have supplied the same by 
construction had they not been so 
embodied, cannot operate to change 
the burden of proof from the de- 
fendant to the plaintiff.*' 

90. Mobile & Ohio R. Co. v. 
George, 94 Ala. 199, 10 So. 145. 

91. Southern Pac. Co. v. Tom- 
linson, 4 Ariz. 126, 33 Pac. 710. 

92. Soard v. Western Anthracite 
Coal & M. Co., 92 Ark. 502; Little 
Rook & Ft. S. R. Co. v. Eubanks, 
48 Ark. 46, 3 S. W. 808; Wallis v. 
St. Louis, I. M. & S. R. Co., 77 
Ark. 556, 95 S. W. 446. 



§769 



BUBDEN OP PbOOP. 



2053 



California. 
In California it is not necessary for the plaintiff to aver 
or prove that he himself was without fault.'* 

Colorado. 

The general rule at oommon law is that contributory 
negUgence is a defense in actions where the defendant is 
charged with negligence; and when clearly established by 
evidence substantially uncontradicted is to be adjudged 
a defense, as matter of law, by the court.' ^ 

Connecticut. 
It is incumbent upon a plaintiff who seeks redress for 
injuries occasioned by the alleged negligence of the 
defendant to prove that he was in the exercise of due care 
at the time, and this by a fair preponderance of the evi- 
dence.'* 



93. Magee v. N. P. C. R. Co., 
78 Cal. 430, 21 Pao. 114, 12 Am. 
St. Rep. 69; Robinson v. Western 
Pftdfio R. Co., 48 Cal. 409; Mc- 
Quiken v. C. P. R. Co., 60 Cal. 7; 
Smith V. Oooidental & O. S. Co., 
99 Cal. 462; MoQuiken v. C. P. R. 
Co., 50 Cal. 7; Smith v. Oooidental 
& O. S. Co., 99 Cal. 462. 

94. Vietat Coal Co. v. Muir, 20 
Colo. 320, 38 Pao. 378, 46 Am. St. 
Rep. 299, 26 L. R. A. 435. If the 
evideooe in the most favorable 
light in which it may be reasonably 
oonffldered in behalf of the plaintiff 
shows the plaintiff was guilty of 
negligence which contributed to the 
cause of injury as alleged, and with- 
out which the injury would not 
have happened, then the court 
may properly nonsuit the plaintiff 
or direct a verdict for the defendant ; 
but if the evidence be contradic- 
tory in any substantial matter on 
the question of contributory neg- 
ligence, then such question should 
be submitted to the jury under 
proper instructionB. Where there 



is no conflict in the testimony 
bearing upon the subject, either 
of negligence or contributory 
negligence, the court may, in a 
dear case, treat the question as 
one of law, and grant a nonsuit 
or direct a verdict; but when the 
determination of the question de- 
pends upon the inference to be 
drawn from a variety of facts and 
circumstances, in the considera- 
tion of which there is room for a 
substantial difference of opinion 
between intelligent and upright 
men, then the question shall be 
submitted to the jury imder ap- 
propriate instructions, even though 
there may be no conflict in the 
testimony. It was held that a 
person was guilty of contributory 
negligence as a matter of law, who 
attempted to pass between cars 
ui>on a track through an opening 
between them two feet wide. Lord 
V. Pueblo Smelting & Refining Co., 
12 Colo. 390, 21 Pao. 148. 

95. Ryan v. Town of Bristol, 63 
Conn. 26, 27 AU. 309. 



2054 



Ma8TEB and SRBYAlirr. 



§769 



It was subsequently held, however, in an action by a 
servant for personal injuries, that where there is a hearing 
in damages, the burden is on the defendant to prove that 
the injury was not caused by his negligence and that the 
plaintiff was guilty of contributory negligence.** 

Delaware, 
In order to hold an employer resi>onsible for the acts or 
omissions of his agents, where the rights of others are con- 
cerned, such acts or omissions must be proved by defend- 
ant, and also it must appear that the plaintiff was not 
guilty of any contributory negligence.'^ 

Florida. 
The burden is on defendant.** 

Georgia. 

In an action for damages against another than a rail- 
road company for injuries occasioned by negligence, the 
plaintiff need only prove his injury and the negligence of 
the defendant by which it was caused in order to make out 
a prima facie case. Whether or not by the exercise of 
proper diUgence he could have prevented the injury is a 
matter of defense.*^ 

It was subsequently held that the burden of proving 
due care was on the plaintiff.^** 

Where the employer is a railroad company, the question 
of contributory negligence as a defense is regulated by a 
statute which, prior to the amendment of 1909, required 
plaintiff to prove either (1) that defendant was negligent 
or (2) plaintiff was free from fault. ^*^ 



96. Julian v. Stony Creek Red 
Granite Co., 71 Conn. 632, 42 Atl. 
994. See also Simeoli v. Derby 
Rubber Co., 81 Conn. 423, 71 AtL 
546. 

97. Valente v. American Bridge 
Co., 6 Pennew. (Del.) 556, 73 Atl. 
395; Stewart v. Philadelphia W. 
& B. R. Co., 8 Houst. (Del.) 450, 
17 Atl. 639; Huber v. Jackson & 
Sharp Co., 1 Manr. (Del.) 374, 41 
Atl. 92. 



98. German American Lumber 
Co. V. Brook, 55 Fla. 577, 46 So. 
740; Taylor v. Prairie Pebble Phoa- 
phate Co., 54 So. (Fla.) 904. 

99. City of Augusta y. Hudson, 
88 Ga. 599, 15 S. E. 678. 

100. McDaniels v. Acme Brew- 
ing Co., 113 Ga. 80, 38 S. E. 404. 

101. Atlantic Coast line R. Co. 
V. Jones, 132 Ga. 189. See also 
supra, . 



§769 



BUBDEN OF PbOOF. 



2055 



The rule under the 1909 amendment is stated in a subse- 
quent section. ^•^ 

Idaho. 

Contributory negligence of the plaintiff, if relied upon 
by the defendant, is a defense to be established by the 
defendant.*^* 

Illinois. 

The burden is on the plaintiff not only to show negli- 
gence of the defendant, but also the exercise of due care 
on his own part.^®* 

The law does not always require positive proof of due 
care and diligence on the part of the plaintiff. Under 
certain circumstances it may be taken for granted that he 
observed usual and ordinary care for his persbnal safety. 
Thus, where an engineer upon a railroad, who was killed 
by defects in a foot board, was shown to be a careful and 



Proof that a deoeased em- 
ployee of a railroad oompany 
who was killed by the numing of 
its train, was without fault, raises 
a presomption that the oompany 
was in fault. Proof that the serv- 
ants of the company operating the 
train were in fault puts upon the 
oompany the burden of showing 
that the deoeased himself was neg- 
ligent. Augusta Southern R. Co. 
v. McDode, 105 Ga. 134, 31 S. E. 
420. So much of sec. 2321, Civil 
Code of (Georgia, as is embraced in 
the phrase "the presumption in all 
cases being against the company," 
is inapplicable to a case where a 
railroad company is sued for the 
killing of an employee unless the 
plaintiff affirmatively shows that 
the deceased was free from fault. 
Augusta Southern R. Co. v. Mc 
Dode, 105 Ga. 134, 31 S. E. 420. 
The burden of proof is upon the 
plaintiff to show that he was not 



to blame or that the company was. 
The burden of showing that the 
agents of the company have ex- 
ercised all ordinary and reasonable 
care and diligence is not imposed 
upon the company until the plain- 
tiff has shown that the employee 
was free from fault or that the 
company was at fault. Western 
& A. R. Co. V. Jackson, 113 Ga. 
355, 38 8. E. 820; Campbell v. 
Atlantic, etc., R. Co., 53 Ga. 488, 
56 Ga. 586; Georgia R. & B. Co. 
V. Hicks, 95 Ga. 301, 22 S. E. 613. 

102. See supra, S — . 

103. Hopkins v. Utah Northern 
R. Co., 2 Idaho, 277, 13 Pac. 343; 
Gk>ure v. Storey, 17 Idaho, 352, 
105 Pac. 794. 

104. Aurora Branch R. Co. v. 
Grimes, 13 ni. 585; Illinois C. R. 
Co. V. Cozby, 174 HI. 109, 50 N. E. 
1011; Eepperly v. Ramsden, 83 
in. 354; Abend v. T. H. & I. R. 
Co., Ill HI. 202, 53 Am. Rep. 616. 



2056 



Masteb and Sebvant. 



§769 



competent serva«nt in his employment, and he was seen a 
few moments before his death in the observance of due 
care, it was held that it could not properly be said there 
was an entire want of evidence on this branch of the 
case.*®* 

Where the negligence of the defendant is gross, it has 
been held that the exercise of due care on the part of the 
plaintiff may be regarded as proved, where it is shown 
that the negligence of the plaintiff was, in comparison, 
slight, but the burden, even in that case, is on the plaintiff 
to show that he was free from such negligence as would 
defeat the action.*®* 

Independent of statute, the burden of proof of n^li- 
gence of defendants, and absence of contributory negli- 
gence of plaintiff, is on the latter, but it will be sufficient 
if these facts appear either directly or circumstantially. 
It is only where the facts and circumstances surrounding 
the injury point neither one way nor the other that the 
plaintiff must fail for want of affirmative proof. *®^ 



105. Missouri Fnnmoe Co. v. 
Abend, 107 HI. 44, 47 Am. Rep. 
425; Chioa«:o, B. & Q. R. Co. v. 
Clark, 92 m. 43. 

106. Indianapolis & St. L. R. 
Co. V. Evans, 88 m. 63; Chicago, 
B. & Q. R. Co. V. Harwood, Admx., 
90 IlL 425. Rule of oomparatdve 
negUgenoe, however, no longer 
prevails. 

107. Cincinnati, H. & D. R. 
Co. V. MoMullen, 117 Ind. 439, 
20 N. E. 287, 10 Am. St. Rep. 67. 
An averment in a complaint that 
plaintiff was himself without fault 
is sufficient to exclude the existence 
of contributory negligence. The 
plaintiff, however, must aver facts 
showing that the danger which 
augmented the risks of his service 



was not known to him. Louisville, 
N. A. & C. R. Co. V. Sanford, 117 
Ind. 265, 19 N. E. 770; Lake Shore 
& M. S. R. Co. V. Stupak, 108 Ind. 
1, 8 N. E. 630; Indiana, B. & W. 
R. Co. V. Dailey, 110 Ind. 75, 10 
N. E. 631; Ft. Wayne, C. & L. R. 
Co. V. Gruff, 132 Ind. 13, 31 N. E. 
460. Absence of contributory neg- 
ligence did not appear where a 
workman was injured by falling 
into a moulding pit, there being 
no evidence as to what he was 
doing at the time, and his regular 
place of work was fifty feet away, 
and just before he was injured he 
was working fourteen feet away. 
East Chicago Foundry Co. v. 
Ankeny, 19 Ind. App. 150, 49 N. E. 
186. 



§769 



BUBDBN OP PbOOF. 



2057 



Under the 1899 statute, however contributory negli- 
gence is matter of defense, the burden of proving it being 
upon the defendant. ^^^ 

Iowa. 

In Iowa, the plaintifF alleging negligence must prove 
that he was not guilty of negligence contAbuting to the 
injury. This does not require direct and positive proof, but 
the fact may sometimes be fairly and reasonably inferred 
from circumstances.^^* 

Where such evidence cannot be obtained, it is proper 
for the jury to consider the instinct of men which natur- 
ally leads them to avoid danger, as evidence of due care 
on the part of the person injured. ^^^ 

Contributory negligence is not a defense; its absence is 
a matter to be pleaded and proved to justify a recovery. 
It is proper for the jury to consider the natural instinct of 
self preservation, since direct and positive evidence is not 
required to show an absence of negligence. If it may be 
inferred from all the evidence in the case, it is sufficient. 
But it will not do to say that one can go upon a railroad 
track without having a duty there, and if, while walking, 
he is struck by a train, the jury may assume from the 
instinct of self preservation alone that he was diligent. 
In reference to the facts it was said: ''If he exercised 
the sense of hearing, he must have heard the train in time 
to get off the track. If he did not hear it, it was because 
he was not attentive. And in either case it was negligence. 
The facts overcome any presumption to arise from the 
rule as to the instinct of self-preservation."^^^ 



108. Diamond Block Coal Co. 
V. Cuthbertaon, 166 Ind. 290, 76 
N. E. 1060. Need not be negatived 
in the complaint. Inland Steet 
Co. v. Tedinak, 172 Ind. 423, 87 
N. E. 229. 

109. Mmrphy V. C. R. I. & P. R. 
Co., 45 la. 661; Hopkinaon v. 
Enapp & Spalding Co., 92 Iowa 
328, 60 N. W. 653. 



110. Hopkinaon v. Knapp & 
Spalding Co., 92 Iowa 328, 60 
N. W. 653. 

111. Baker v. C. R. I. & P. R. 
Co., 95 Iowa 163, 63 N. W. 667. 
The rule being in the particular 
atate that the plaintiff muat ahow 
freedom from negligence, auch rule 
doea not require that itbeeatabliah- 
ed direct afBrmative proof of par- 



2058 



Ma8tbb and Sebvant. 



§769 



Kansas. 

In an action against a railroad company to recover dam- 
ages for personal injury to an employee, occasioned by the 
negligence of a co-employee, it is unnecessary for the 
plaintiff to aver that there was no fault or negligence on 
the part of th% injured person. Contributory negligence 
is a matter of defense. ^^^ 

Kentucky, 

Though contributory negligence is a defense which 
confesses and avoids plaintiff's case, and must be afiSrma- 
tively pleaded by defendant, yet where the petition itself 
states facts showing that plaintiff was guilty of such con- 
tributory negligence as to prevent his recovery, the ques^ 
tion may properly be raised by demurrer."* 

Louisiana. 

To recover damages for personal injuries received from a 
railroad company, it is necessary for plaintiff to show that 
the accident in consequence of which the injuries were re- 
ceived, was caused by the negligence of the company, and 
that the plaintiff was not guilty of any negligence which 
aided the accident."* 

Maine. 

The burden of proof in actions for personal injuries is 
on the plaintiff to show that the injured party was in the 
exercise of due care and diligence at the time of the injury 



ticular acts of oare, but it may be 
inferred from oiroumBtanoeB that 
he was in the exercise of the oare. 
Knowlton v. Des Moines Ed. 8. 
Co., 117 Iowa. 451, 90 N. W. 818. 

112. Missouri Pao. R. Co. v. 
MoCally, 41 Ran. 639, 21 Pao. 
574; Railroad Co. v. PhiUibert, 25 
E^an. 405. 

113. Favre v. Louisville & N. R. 
Co., 91 Ky. 541, 16 S. W. 370; 
Raikoad Co. y. Hoehl, 12 Bush. 
41; Railroad Co. v. Thomas, 79 
Ky. 160. 



114. Deikman v. Morgan's L. 
& T. R. & S. S. Co., 40 La. Ann. 
787, 5 So. 76. But see Myhan y. 
Louisiana £. L. & P. Co., 41 La. 
Ann. 964. The failure to establish 
the allegations of the complaint 
in respect to defendant's negli- 
gence, does not throw upon the 
defendant the burden of accounting 
for the accident. Duncan y. 8t. 
Louis I. M. & S. Ry. Co., 51 La. 
Ann. 775, 26 So. 478. 



§ 769 BuBDBN OP Pboop. 2059 

or at least that the want of such care on his part in noway 
contributed to produce it. It is not enough to show that 
the defendant was negligent. It is incumbent on the 
prosecuting party to go further and directly or indirectly, 
by afiSrmatiye proof, satisfy the jury that no want of due 
care on the part of the injured party helped to produce 
the accident."* 

Maryland. 

In an action against a railroad company for the death of 
a servant, alleged to have resulted from defendant's 
negligence, the declaration is defective if it fails to negative 
the existence of contributory negligence on the part of 
deceased."* 

It was held in a former case that the burden of showing 
contributory negligence on the part of the plaintiff rests 
upon the defendant as well in suits occasioned by defects 
in county roads and bridges as in actions against railroad 
companies for injuries occasioned by them."^ 

Massachusetts. 

Wherever there is negligence on the part of the plaintiff 
contributing directly as a proximate cause to the occasion 
from which the injury arises, such negligence will prevent 
the plaintiff from recovering; and the burden is always on 
him to establish either that he was in the exercise of due 
care or that the injury was in no degree attributable to 
any want of care on his part."® 

It is not necessary, however, that the plaintiff should 
prove due care on his part by directly afllrmative evi- 

115. State v. Maine Cent. R. 117. County Commissioners v. 
Co., 77 Me. 538, 1 Atl. 673, s. o. Burgess, 61 Md. 29. See also 
76 Me. 357; Benson v. Titoomb, Bemheimer Bros. v. Bager, 108 
72 Me. 31; Wyman v. Berry, 106 Md. 551. 

Me. 43, 75 AtL 123; MoLane v. 118. Murphy y. Deane, 101 Mass. 

PerkinB, 92 Me. 39, 42 Atl. 255, 455; TuUy v. Fitchburg R. Co., 

43 L R. A. 387. 134 Mass. 499; French v. Sabin, 

116. State to use of Dodson v. 202 Mass. 240. 
Bait. & L. R. Co., 77 Md. 489, 

26 Ail. 865. 



2060 Ma8teb and Sebvant. ^769 

dence; that inference may be drawn from absence of all 
appearances of fault on his part.^^* 

The plaintiff having the burden to show the employee 
was in the exercise of due care, must affirmatiyely prove 
it by facts or circumstances existing at the time. Where 
it does not appear how the accident happened, and what 
the deceased was doing at the time, due care is not shown. 
That he generally was a competent and careful man, or 
that he exercised due care on prior occasions, is not suffi- 
cient.^**^ 

The statute of Massachusetts of 1887, known as the 
Employer's Liability Act, and exempting from the right 
to recover for personal injuries employees who, knowing 
the danger of their employment, fail to give information 
thereof, does not require an employee to prove his ignor- 
ance of any danger, or the giving of information, before 
he can recover, but the burden of such matter is upon the 
defendant."* 

Michigan. 

The gravamen of an action for damages for negligent 
injury is that the plaintiff has been damnified by the 
wrongful and negligent conduct of defendant without 
having contributed thereto by his own negligence, and 
as the absence of contributory negligence is a part of his 
own case, he should show that he acted with due care. 
But it is enough if he merely puts in evidence the facts and 
circumstances attending the injury, and if these show 
negligent conduct in the defendant, from which the injury 
followed as a direct and proximate consequence, and do 
not show contributory negligence, a prima facie case is 
estabUshed.1" 

119. Mayo v. Boston & M. R. 120. French v. Sabin, 202 Mass. 

Co., 104 Mass. 137; Peverly v. 246, 88 N. E. 845. 
Boston, 136 Mass. 366, 49 Am. 121. Connolly v. City of Wal- 

Rep. 37; Luoas v. N. B. & T. R. tham, 156 Mass. 368, 31 N. E. 

Co., 72 Mass. 64; Caron v. Boston 302. 

& Albany R. Co., 164 Mass. 523, 122. Teipel v. Hilsendegen, 44 

42 N. B. 112. Mich. 461, 7 N. W. 82. 



^769 



BUBDBN OP PbOOP. 



2061 



Minnesota. 

The burden is upon the defendant to prove contribu- 
tory negligence on the part of the plaintiff.^'' 

The statute of 1887 subjecting raOroad companies to 
liability to their servants for the negligence of fellow- 
servants does not change the rule as to the burden of proof 
of contributory negligence. ^^^ 

It need not be negatived in the complaint. ^^^ 

The rule in Minnesota is that in an action by an admin- 
istrator for injuries resulting in death, the plaintiff's 
intestate is entitled, in the consideration of the conduct 
of the deceased at the time of the accident, to every fair 
and reasonable justification in its favor, that is possible 
under the circumstances.^'* 



The burden of proof is on defendant to show contribu- 
tory negligence except in those cases where the declara- 
tion alleges facts which prima facie show contributory 
negligence, but coupled with matter in avoidance, and 
except where plaintiff's evidence discloses contributory 
negligence."^ 

Missouri. 

Contributory negligence is a defense, the burden of prov- 
ing which is on the defendant."* 



123. Greene v. Minneapolis & 
St. Louis R. Co., 31 Minn. 243, 
17 N. W. 378, 27 Am. Rep. 786. 

124. Lorimer v. St. Paul City 
R. Co., 48 Minn. 391, 51 N. W. 
125. 

125. Thompson v. Great North- 
em R. Co., 70 Minn. 202, 72 N. 
W.9e2. 

126. Hooper v. Great Northern 
R. Co., 80 Minn. 400, 83 N. W. 
440. 

127. Simms v. Forbes, 86 Miss. 
412. Contributory negligence of 
an employee in an action against 
the master is matter of defense. 



Buckner v. Richmond & D. R. Co., 
72 Miss. 873, 18 So. 449. 

128. Edington ▼. St. Louis & 
S. F. R. Co., 204 Mo. 61; Bluedom 
v. Missouri Pac. R. Co., 121 Mo. 
258, 24 B. W. 57. It devolves upon 
the defendant, not the plaintifF, 
to plead and prove want of care 
or contributory negligence on 
the part of the plaintiff. This is 
the settled rule in this state. In 
cases where the defendant is in- 
jured by defective machinery, it 
is not incumbent upon the plain- 
tiff to prove want of knowledge 
of the defect in the appliance. That 



2062 



Master and Sbbvant. 



§769 



Montana. 

In an action for injuries, contributory negligence is a 
matter of defense, and the plaintiff is not required to prove 
its absence as a part of his case. When, however, the 
plaintiff's own case raises a presumption of contributory 
negligence, the burden of proof is immediately upon him.^^ 

Nebraska. 

Contributory n^ligence is a matter of defense, and the 
burden of its proof is on the defendant. If the plaintiff 
proves his case without disclosing any contributory 
negligence, he will be assumed to be free therefrom. ^'^ 

New Hampshire. 

The rule in this state appears to be that contributory 
negligence is a matter of defense. ^'^ 

New Jersey. 

Contributory negligence is a matter of defense, yet if it 
clearly appear at the close of the plaintiff's evidence, the 
court should nonsuit."* 

New York. 

It is now provided by statute in this state that contrib- 
utory negligence is a defense which must be proved and 
pleaded. Formerly, in cases where contributory negli- 
gence may be claimed, it was settled that the absence of 



is matter of defense. (Citing 
Young V. Iron Co., 103 Mo. 324, 

15 S. W. 771.) The same rule ap- 
plies where the servant is suing 
for injuries occasioned by the neg- 
ligence of an incompetent servant. 
Williams v. Missouri Pac. R. Co., 
109 Mo. 476, 18 S. W. 1098. 

129. Nelson v. City of Helena, 

16 Mont. 21, 39 Pac. 905; Sohroe- 
der V. Montana Iron Works, 38 
Mont. 479, 100 Pac. 619. 

130. New Omaha Thompson- 
Houston Electric light Co. v. 
Dent, 68 Neb. 668; Union Stock 



Yards Co. v. Conoyer, 41 Neb. 617. 
69 N. W. 950. 

131. Smith v. Eastern R. Co., 
35 N. H. 366. 

132. Berry v. Pennsylvania Co., 
19 Vroom 141. If the case presents 
a fairly debatable question whether 
the plaintiff's negligent conduct 
contributed to the injury, the so- 
lution of that question is for the 
jury, but if it clearly appears that 
such conduct did contribute to 
the production of the injury, then 
the court should control the case 
and direct a nonsuit. Pennsylvania 
R. Co. V. Righter, 13 Vroom 180. 



§769 



BUBDEN OP PbOOF, 



2063 



contributory negligence is part of the plaintiff's case, and 
the burden of satisfying the jury on that point rests upon 
him. If the evidence leaves it in doubt, the defendant is 
entitled to the benefit of the doubt. ^'^ 

North Carolina. 

It is now settled that defendant must allege and prove 
contributory negligence,^ '^ although formerly the question 
was in doubt. ^** 



133. Hale v. Smith, 78 N. Y. 
480; Hart v. Hudson Riv. Bridge 
Co., 84 N. Y. 66; Whalen v. Citi- 
zens G. L. Co., 151 N. Y. 70, 45 
N. E. 363. Cases may arise where 
proof of f aots of itself shows there 
was no contributory negligence; 
but where there is no evidence as 
to what actually did take place 
at the time, and the proof is such 
as to render it uncertain in regard 
to that subject, it cannot be said 
that absence of such negligence is 
established within the rule referred 
to. In such a case no inference can 
legitimately be drawn in favor of 
the plaintiff within the rule stated 
in Powell v. Powell, 71 N. Y. 77; 
Hart V. Hudson Riv. Bridge Co., 
84 N. Y. 66. 

134. Boney v. Atlantic Coast 
line R. Co., 71 S. B. (N. C.) 87; 
Steward v. R. Co., 137 N. C. 690, 
60 8. E. 312; Haltom v. Southern 
R. Co., 127 N. Car. 256, 37 8. E. 
262. 

136. In Doggett v. Railway Co., 
78 N. C. 306, the statement is 
made that "the danger was im- 
minent, and the law imposes the 
burden upon the plaintiff of show- 
ing that he was not negligent." 
In Owens v. Railway Co., 88 N. C, 
on page 617, one of the justices 

expressly states up to that time it 
8 M. «b B*" 



had been an open question, and 
hopes that the court would settle 
it. He favored the rule which 
placed the burden on the defendant. 
The rule of several states is die- 
cussed by the chief justice, render- 
ing the opinion of the court, but 
is not decided any further than 
what is stated, to-wit: "While we 
do not undertake to reconcile the 
divergent decisions in reference to 
the burden of proof, we think a 
clear deduction from them, and as 
well supported by sound reasoning, 
is that if, in disclosing the facts 
which constitute the defendant's 
negligence, it does not appear 
whether the plaintiff exhibited the 
necessary watchfulness and care 
to avoid the consequent harm or 
injury, it will be assumed there was 
no such want of it on his part; 
and if the plaintiff in any legal 
sense was the cause, or the con- 
curring cause, of his own injury, 
the duty of showing it in self ex* 
culpation devolves upon the plain- 
tiff. The inference of this co-operat- 
ing agency may be drawn from the 
plaintiff's proofs of the defendant's 
neglect or misconduct, as well as 
by substantial and independent 
testimony produced by the de- 
fendant." 



2064 Masteb and Sbbvant. ^769 

Ohio. 

It is only where the injury is shown by the plaintiff, 
and there is nothing that implies that his own negligence 
contributed to it, that the burden of proving contributory 
negligence can properly be said to be cast upon the de- 
fendant; for where the plaintiff's own case raises the sus- 
picion that his own negligence contributed to the injury, 
the presumption of due care on his part is so far removed 
that he cannot properly be relieved from disproving his 
own contributory negligence by casting the burden of 
proving it upon the defendant, the same as if the pre- 
sumption in favor of the plaintiff was unquestioned in 
his own case. The question should be left, upon the whole 
evidence, to the determination of the jury, with the in- 
struction that the plaintiff cannot recover if his own 
negligence contributed to the injury."* 

Oregon. 

Contributory negligence is a defense and must be 
averred as such, and where the injury results from the 
direct act or omission of the defendant, which prima facie 
is negligence itself, and the plaintiff receives an injury 
in consequence thereof while pursuing the ordinary course 
of his affairs, he will not be compelled, in order to recover 
his damages, to prove that he was free from fault. The 
burden is on the defendant, in case of personal injury 
caused by defective appliances, to show that the servant 
did not know of the defect and that his negligence con- 
tributed to the injury."^ 

Pennsylvania. 

In actions to recover damages received on account of 
the negligence of the defendant, it has sometimes been 
said that the plaintiff must present a case clear from con- 
tributory negligence. The obvious meaning of that and 
similar forms of expression, is, that the burden is on the 
plaintiff to prove that the injury complained of was 

136. Robinson v. Weaver, 28 & U. N. R. Co., 23 Oreg. 94, 31 
Ohio St. 241. Pao. 283; Doyle v. Southern Pao. 

137. Johnston v. Oregon, S. L. Co., 108 Pao. (Oreg.) 201. 



§769 



BUBDBN OF PbOOF. 



2065 



caused by defendant's negligence, and if in so doing the 
fact is disclosed that his own negligence contributed to the 
result, there can be no recovery because the case as thus 
presented by the plaintiff is not clear of contributory neg- 
ligence. It was never intended to mean that the plaiatiff, 
after first proving affirmatively that the defendant's neg- 
ligence caused the injury, must also prove negatively 
that he himself was not guilty of any negligence that con- 
tributed to the result.*** 

Rhode Island . 

The burden of disproving contributory negligence is 
on plaintiff.*** 

South Carolina. 

Ever since the case of Carter v. Railroad Co., 19 S. C. 
20, if not before, it has been settled in this state, that a 
nonsuit cannot be granted upon the ground that the 
evidence shows contributory negligence on the part of 
the plaintiff, for the very obvious reason, as stated in 
that case, that it involves the decision of a question of 
fact, of which, under the constitution, the jury alone has 
cognizance in a law case. Contributory negligence is a 
matter of defense, and presents a question of fact to be 
solved by the jury.*** 

Tennessee. 

The court declined to decide the question as to where 
lies the burden of proof in cases where contributory negli- 
gence is involved, as an abstract proposition.*^* 



138. Bradwell v. Pittsburg & 
W. E. P. R. Co., 139 Pa. St. 404, 
20 Atl. 1046; Baker v. Westmore- 
land, etc., Gas Co., 157 Pa. St. 
603, 27 Atl. 789. 

139. Judge V. Narragansett 
Eleotrio Lighting Co., 21 R. I. 
128, 42 Atl. 507 [explaining Cas- 
ddy V. Angell, 12 R. I. 447.1 

140. Whaley v. Bartlett, 42 
8. C. 454, 20 S. E. 745. 



141. It was held, however, 
where a child, after being placed by 
its father in the care of a relative, 
was killed while on defendant's 
tracks, that the burden was upon 
the father, suing as administrator, 
to show that neither himself nor 
the child's custodian was guilty of 
contributory negligence. Bam- 
berger V. Citizens' St. R. Co., 95 
Tenn. 18, 31 S. W. 163. 



2066 Masteb and Sebvakt. ^769 



Texas. 

It is incumbent upon the plaintiff, suing for injiuies 
received by an employee, to show how and under what 
circumstances the accident occurred; how he was em- 
ployed at the time, and what the facts were constituting 
the negligence of the defendant; and if his own conduct 
was connected with the negligence of the defendant so as 
to bring about the injury, to show what connection, and 
in so doing to acquit himself of carelessness or establish 
the fact that he was exercising due care; for if, in the 
necessary statement of his own case and his connection 
with it, it appears that he was negligent or that he failed 
to exercise proper caution, he cannot recover. He cannot 
recover unless he shows how the injuries were received. 
After proof of his case establishing the negh'gence of the 
defendant, and his own acts immediately connected 
therewith as free from fault, there may be yet such 
negligence on his part, indei>endent of his prima facie 
case, as will discharge the defendant of liability, and 
which, to become available as a defense, must be alleged 
and proved by the defendant. It is not necessary that the 
petition shoidd negative, either by facts stalled or by 
direct averment, the existence of contributory negligence 
on the part of the plaintiff. An exception to this rule exists 
where the petition from its averments would establish, if 
unexplained, a prima facie case of negligence of the party 
injured. If the defendant relies upon contributory neg- 
ligence not developed by plaintiff's case, he must allege it. 
It is a defense in the nature of avoidance. ^^' 

The burden of proving contributory negligence in a 
suit by an employee is on the defendant. ^^' 

142. Murray v. Gulf C. & 88 Tex. 679, 32 S. W. 1035; Hous- 
8. F. R. Co., 73 Tex. 2, 11 S. W. ton & T. C. R. Co. v. Davenport, 
125. 102 Tex. 369; Houston A T. C. R. 

143. Gulf, C. & S. F. R. Co. v. Co. v. White. 23 Tex. Civ. App. 280, 
Redeker, 67 Tex. 181, 2 S. W. 513: 56 S. W. 204. 

Missouri, E. & T. R. Co. v. Hogan, 



§ 769 BuBDEN OF Pboof. 2067 

United States courts . 

The burden of proving contributory negligence rests 
upon the defendant, and it will not avail the defendant 
unless it has been established by a preponderance of evi- 
dence. This does not imply that the defendant can have 
no benefit of it if it is established by plaintiff's evidence, 
nor that the fact can only be made effectual by a pre- 
ponderance of evidence coming exclusively from the 
party upon whom rested the burden of proof. ^** 

Vermont . 

It is not necessary, especially in cases of injury from 
defective highways, that the plaintiff shall establish affirm- 
atively in the outset that he was not guilty of negligence 
or a want of care in his own conduct or management, 
in order to show an apparent right of recovery. Where the 
defect is conceded or proved, the plaintiff is bound to give 
sufficient evidence to establish prima facie that he sus- 
tained an injury by reason of such defect. If the plaintiff's 
own evidence shows that his conduct on the occasion was 
careless or negh'gent, and that such carelessness or neg- 
ligence aided or contributed to the injury he received, he 
establishes a defense to his action by his own evidence, as 
much as if the same fact were proved by the defendant. 
But if the plaintiff's proof discloses nothing but that his 
conduct at the time was proper and prudent, he is not 
bound to go further until this has been impugned by some 
evidence of the other side. The plaintiff in such case 
is bound to make out affirmatively that his damage was 
caused by the defect in the highway in order to recover. 
Evidence which proves affirmatively that the injury was 
caused by the defect in the highway must necessarily show, 
to a certain extent, negatively that it was not caused by 
anything else. To this extent, and this only, can it be said 
that the burden of proof is on the plaintiff in such case 

144. Indianapolis & St. L. R. Baltimore & O. R. Co. v. BnrriB, 
Co. V. Hont, 03 U. S. 291; Hough 111 Fed. 882. 
▼. Railway Co., 100 U. S. 213; 



2068 



Masteb and Sebvakt. 



§769 



to show in the outset of his case that his own negligence 
did not cause or contribute to his injury. ^^^ 

Virginia. 

The burden is upon the defendant to prove contribu- 
tory negligence on the part of the plaintiff. The law pre- 
sumed a party to have been in the exercise of ordinary 
care.*^* 

Washington. 

In actions by an employee against the employer for 
personal injuries, the burden of proof as to contributory 
negligence of such employee rests upon the defendant. ^^^ 

West Virginia. 

Notwithstanding there are some statements in the de- 
cisions tending to support the contrary rule,^^^ it is be- 
lieved that the rule still is that the burden of proving 
contributory negligence is on defendant and that it need- 
not be negatived in the complaint. ^^* 

Wisconsin. 

Contributory negligence of the plaintiff is an afiSrma- 
tive defense which must be proved by defendant.*^ 



145. Hill, Admr. v. Town of 
New Haven, 37 Vt. 501. 

146. Interstate R. Co. v. Tyree, 
110 Va. 38, 65 S. E. 500; Balti- 
more & Ohio R. Co. v. McKenzie, 
81 Va. 71: Sheeler's Admr. v. 
C. & 0. R. Co., 81 Va. 188, 59 Am. 
Rep. 654. 

147. Northern Pao. R. Co. v. 
O'Brien, 1 Wash. 599, 21 Pac. 32. 

148. A servant who seeks to 
recover for an injury which he 
claims resulted from defective ma- 
chinery or appliances furnished by 
the master, to be used about the 
business in which such servant was 
employed, takes upon himself the 
burden of establishing neglifirence on 
the part of the master and due care 



on his own part, and in order to 
entitle him to recover he must 
overcome two presumptions: First, 
that the master has discharged his 
duty to him by providing suitable 
machinery and appliances for the 
business, and keeping them in that 
condition; second, that he assumed 
aU the usual and ordinary hasards 
of the business. Johnson v. Chesa- 
peake & 0. R. Co., 36 W. Va. 
73, 14 S. E. 432. 

149. Bems v. Qaston Gas Coal 
Co., 27 W. Va. 285, 55 Am. Rep. 
304; Unfried v. Baltimore & O. R. 
Co., 34 W. Va. 260, 12 S. E. 612. 

160. McQuade v. C. & N. W. 
R. Co., 68 Wis. 616, 32 N. W. 633 
(holding however, that defense is 



§§ 770-772 



BUEDEN OF PbOOF, 



2069 



Utah. 
C!ontributory negligence is a matter of defense. ^^^ 

§ 770. Fellow-servants. 

The burden of proving the defense that the negligent 
servant was a fellow-servant of the injured servant is 
ordinarily on defendant, ^'^^ although in some jurisdictions 
all servants of the same master are presxmied in the first 
instance to be fellow-servants/^' and the burden of proof 
of the non-existence of .the relation of fellow-servants is on 
plamtiff."^ 



§ 771. Relationship of parties. 

The burden is on plaintiff to show that the relation of 
master and servant existed between him and defendant 
at the time of the accident. ^'^^ 



§ 772. Role in 

Under the 1909 statute in Georgia, the court has laid 
down the following rules as to the burden of proof where 
an employee sues a railroad company for personal in- 
juries received in the service: 



admissible tinder a general denial) ; 
Blankavag v. Badger B. & L. Co., 
136 Wis. 380, 117 N. W. 852. 

151. Woods V. Railway Co., 9 
Utah, 146, 33 Pao. 628; Smith v. 
Railway Co., 9 Utah, 141. 

152. Bjorman Fort Bragg Red- 
wood Co., 104 Cal. 626: Consoli- 
dated Kansas City, 8. & R. Co. v. 
Osborne, 66 Kan. 393, 71 Pao. 838; 
Mobile, Jackson & K. C. R. Co. v. 
Hicks, 91 Miss. 273; Chicago, B. & 
Q. R. Co. V. Oyster, 68 Neb. 1, 78 
N. W. 359; MiUen v. Pacific Bridge 
Co., 51 Or. 538, 95 Pac. 196; 
Patterson v. Houston & T. C. R. 
Co., 40 8.W. (Tex. Civ.App.) 442. 
See also infra, §§ 834-854. 

153. Chicago City R. Co. v. 
Leach, 208 HI. 198, 70 N. E. 222, 



100 Am. St. Rep. 216; Mollhoff v. 
Chicago, R. I. & P. R. Co., 15 OM. 
540, 82 Pac. 735; Kansas City, 
Ft. S. & M. R. Co., 63 Ark. 477, 

39 S. W. 858. Contra, Chicago, 
P. & St. L. R. Co. V. Mikesell, 113 
111. App. 146. 

154. Chicago City R. Co. v. 
Leach, 208 III. 198, 70 N. E. 222. 
See also infra, §§ 834, 854. 

155. Ringue v. Oregon Coal & 
Navig. Co., 44 Or. 407, 75 Pac. 
703: Larson v. Centennial Mill Co., 

40 Wash. 224, 82 Pac. 294, 111 Am. 
St. Rep. 904. But proof of employ- 
ment several years prior to the 
accident raises the presumption of 
continuance. Southern Pac. Co. v. 
Wellington, 36 S. W. (Tex. Civ. 
App.) 1114. 



2070 Masteb and Servant. §772 



'^a) If it does not appear that the plaintiff was himself 
connected with the transaction from which the injury 
flowed, and if it appears that he was hurt through the 
rumung of the defendant's cars or machinery, or by the 
act of some f eUow-servant, the presumption authorized by 
Civil Code 1910, § 2780, comes to his aid, and he makes a 
prima facie case merely by showing that he was damaged 
through one of the methods specified. If the damage did 
not ensue from one of the causes specified in the Code 
section just cited, the plaintiff must prove the defendant's 
negligence without the aid of the presumption. 

(b) If the plaintiff himself was connected with the 
transaction through which his injury ensued, he cannot 
rely solely upon the statutory presumption to make out 
his case. If the transaction is not one as to which the 
statutory presumption applies, he must prove the negli- 
gence by some a£Brmative proof, but need not go further 
and negative his own contributory negligence. 

(c) If the transaction in which the plaintiff was dam- 
aged was one as to which Civil Code 1910, § 2780, applies, 
and the plaintiff was himself a party to the transaction, 
he may make a prima facie case by proving either of 
two additional things: (1) That he did not bring about 
the injury by his own carelessness, amounting to a failure 
to exercise ordinary care; or (2) that the defendant or 
its other servants were in fact negligent in one or more 
of the respects charged in the petition. The defendant, 
taking at this stage the burden of reply, can successfully 
defend by disproving either of these propositions, or by 
proving that, notwithstanding it or its servants were 
guilty of negligence, the plaintiff, by the exercise of 
ordinary care, could have avoided the consequences. 

(d) If it appears, either by aflBrinative proof or by pre- 
sumption, that the defendant was negligent, and it also 
appears that the plaintiff was somewhat at fault (but less 
at fault than the defendant), the plaintiff may nevertheless 
go to the jury, and may recover (unless it appears that his 
injury was brought about by his own carelessness, amount- 
ing to a failure to exercise ordinary care, or that by the 



§772 



BUEDEBT OP PbOOF. 



2071 



exercise of ordinary care he could have avoided the con- 
sequences of the defendant's negligence), and in such cases 
the jury may diminish the damages in proportion to the 
amount of negligence attributable to the plaintiff.""^ 



156 WrightBville & T. R. Co. 
V. TomplrinB, Ga. App., 70 8. B. 
955. Under seo. 3033 of the old 
Code, alone, an employee of a rail- 
road company would not be en- 
titled to recover damages for an 
injury sustained by him, caused by 
the negligence of other employees of 
the company, since without seo- 
tions 2083 and 3036 of the old Code 
he would be under the common law 
rule. Section 3033 puts the burden 
upon the company in all cases where 
damage is done by the running of 
its trains, etc., to make it appear 
that its agentfi have used all ordi- 
nary and reasonable care and dili- 
gence. Construing these sections 
together, their true intent and 
meaning is, that while the company 
must prove that iis agents have 
used proper care and diligence, it 
is necessary for the employee who 
sues to show that the injury was 
caused without fault or negligence 
on his part. In such a case, the 
contest is between an employee 
and the company on account of 
alleged negligence on the part of 
other employees. This construction 
makes it incumbent on both sides 
to show the discharge of their du- 
ties; on the part of the plaintiff, 
that he was without fault or negli- 
gence to entitle him to recover, and 
on the part of the company, that 
its agents and other employees 
mere not wanting in care and dili- 
gence. Campbell V. Atlanta & R. A. 
L. R. Co., 53 Ga. 488, 56 Ga. 586; 
Rowland v. Cannon, 35 Ga. 105; 



Sears v. Central R. & B. Co., 53 
Ga. 630; Central R. & B. Co. v. 
Roach, 64 Ga. 635; Thompson v. 
Central R. & B. Co., 54 Ga. 509. 
Tet it was subsequently stated that 
the rule of liability of a railroad 
company for negligence is not the 
same in the case of an employee 
as in the case of a passenger. In the 
case of an employee no presumption 
of negligence on the part of the 
company arises from the accident 
alone, as it does in the case of a 
passenger. But the plaintiff must 
at least show that the employee 
was using due care. The decisions 
which allow a partial recovery 
against a railway company for 
negligence, notwithstanding the 
contributory negligence of the em- 
ployee or person injured, do not 
apply to the case of an injury sus- 
tained by an employee of the com- 
pany, who must be free from 
fault, or he, or his representative in 
case of his death, cannot recover. 
Where it is shown that the company 
itself is at fault, then the presump- 
tion is that the employee was not 
at fault, or, where it is shown that 
the employee was free from fault, 
then the presumption would arise 
that the company was at fault, and 
the onus would be on the defendant 
to remove that presumption by 
showing proper diligence. The 
doctrine of contributory negligence 
does not apply in the case of an 
injury sustained by an employee. 
He must be free from fault, and, if 
the injury is sustained by him in 



2072 



Masteb and Sebvant. 



§772 



oonaeqaenoe of any fault or nei^- 
genoe on his part, lie cannot re- 
cover. East Tenn. V. & G. P. R. 
Co. V. Maloy, 77 Ga. 237, 2 S. E. 
941. In an action against the 
defendant railroad company for 
injnriee to an employee, caused by 
the negligence of a co-employee, the 
court instructed that, "to make a 
prima fade case, the plaintiff 
must prove either that he was not 
to blame or that the company was. 
The company, in replying, may 
defend successfully by disproving 



either proposition, that Is, by show- 
ing either that the plaintiff was 
to blame or that the company was 
not. By blame I mean the want of 
due diligence." The measure of 
diligence which the law imposes 
upon railroad companies in refer- 
ence to employees, and in the con- 
duct of employees in refwenoe to 
their company, is ordinary dili- 
gence or common prudence. It was 
held there was no error in the 
instruction. Central R. Co. v. 
Lanier, 83 Ga. 687, 10 8. E. 279. 



Admissibility of Evibbnge. 



2073 



CHAPTER III. 



ADMISSIBILITT OF BVIDBNCB. 



Seo. 
773. 



774. 



775. 



776. 

777. 
778. 

779. 



Admissions and declarations. 

Declarations made at time 
of accident. 

Declaration of agent sent to 
obtain statement as to 
accident. 

Admission not made in 
performance of duty. 
Admissions and declarations 

of co-employees and of in- 
jured servant. 

Statements as to condition 
of appliances. 

Voluntary exclamations of 
pain and suffering. 

Time intervening between 
accident and declaration. 

Declarations of deceased. 
Custom and customary 

methods. 

Customary method of per- 
forming an act. 

Rules and customs of oper- 
ating trains. 

Custom may be shown as 
aiding to interpret con- 
tract of employment. 

niustrationB of rule. 
Qeneral notoriety. 
Defects at other places. 
Conditions prior and subse- 
quent. 
Other accidents at same place, 

from same appliance, and 

from same cause. 

Not admissible to show neg- 
ligence but to prove de- 
fect or notice. 

Evidence as admissible to 
show others had not been 
injured. 



Sec. 
780 



781. 
782. 



783. 



784. 
786. 
786. 
787. 

788. 
789. 

790. 

791. 



792. 



Other manifestations of same 
defect in appliance or like 
appliance. 

Other negligence of defend- 
ant. 

Repairs or changes after acci- 
dent. 
Substitution of new for old 

appliance. 
Rule applies to change of 

method. 
Warning subsequently given. 
Evidence admissible for cer- 
tain purposes. 

Expert and opinion evidence. 
Whether particular act or 
conduct was negligence. 
Opinion evidence as to 
point jury are to decide. 
Opinion evidence as to 
whether situation was 
perilous. 
Competency of expert. 
Appb'oation of rules. 

Speed of trains. 

Models, plats and diagrams. 

Instruction and warning. 

Injury to witness at same 
time and place. 

Existence of insurance. 

Carlisle and other mortuary 
tables. 

Evidence as to contributory 
negligence. 

Evidence as to communica- 
tions with deceased wh«)re 
employee or opposing party 
dead. 

Evidence as corresponding 
with pleading. 



2074 Mastbb and Sbbvant. §773 

§ 773 • Admissions and declarations. 

The declaiTation of an agent made at the time of a par- 
ticular transaction which is the subject of inquiry, and 
while acting within the scope of his authority, may be 
given in evidence against the principal as a part of the res 
gestae; but it is equally settled that the declarations of an 
agent, made after the transaction is fully completed 
and ended, are not admissible. The declarations of offi*- 
cers of a corporation rest upon the same principles as 
apply to other agents. ^*^ 

The rule seems to have been extended, in a particular 
case, in allowing such declarations where they were to 
the effect that the agent had previous knowledge. ^^^ 

But this seems to be exceptional. Thus, it was held, 
that evidence that the defendant's superintendent, the 
day after an accident, stated to a third person that he 
knew of the defective condition of the dock, which caused 
the injury to an employee, and was repairing it, but had 
not reached the place of the accident, was inadmissible.^^* 

The fact that the captain of a mine was, with respect 
to under ground operations, the alter ego of the em- 
ployer, did not have the effect to make his admissions 
before the coroner's jury as to the safety of the mines, 
binding upon the employer, in an action for injuries 
to an employee, not being within the scope of his agency.**® 

Declansitions or admissions of an agent must be at or 
so near the time of the accident as to form a part of the 
res gestae, to be admissible in evidence. Thus a declare^ 
tion of a superintendent made after an accident had 
occurred, that if the machine had been in propel* condi- 

157. Huntingdon, etc., R. Co. also Wilson v. Dunreath R. S. Q. 
V. Decker, 82 Pa. St. 119, 84 Pa. Co., 77 la. 420, 42 N. W. 360, 14 
St. 419; Pennsylvania R. Co. v. Am. St. Rep. 304; Alquist v. Eagle 
Books, 57 Pa. St. 339. Iron Works, 126 la. 67, 101 N. W. 

158. Baker v. Alleghany Val. 520. 

R. Co., 95 Pa. St. 211, 40 Am. Rep. 160. Andrews v. Tamarack 

634. Min. Co., 114 Mich. 375, 72 N. W. 

159. Van Dusen v. Letellier, 242. 
78 Mich. 492, 44 N. W. 572. See 



§ 774 Admissibility of Evidenob. 2075 

tion the accident would not have happened, was held in- 
competent.*** 

Declarations made at time of accident. 

Where, however, an agent in charge of the work at the 
moment of the accident declared that he expected it, it 
was held that evidence of such declaration was admissible 
as part of the res gestae, upon the question of defendant's 
knowledge of the condition of the appliance or unsafe 
condition of the place. *•* 

And where the question was whether a witness had 
heard any expression from one claimed to be a vice prin- 
cipal, at the time of the accident or immediately after it, 
concerning the condition of an appliance, it was held 
proper as a part of the res gestae.**' 

Declaration of agent sent to obtain statement as to 
accident. 

The declaration of an agent sent by the defendant to 
obtain a statement of the circumstances of an accident is 
inadmissible in evidence, being mere hearsay.**^ 

Admission not made in performance of duty. 

The admissions of an agent or general manager of a 
corporation, not made in the performance of his duty 
as an agent or officer, are not admissible in evidence 
in an action against the corporation by an employee to 
recover for personal injuries sustained.**' 

§ 774. Admissions and declarations of co-employees 
and of injured servant. 

The extent to which the admissions of an agent or vice- 
principal are admissible has been considered. We now 
consider the extent to which the admissions and declara- 

161. Shaffer v. Habh, 110 Pa. 164. Doyle v. St. P. M. & 
St. 675, 1 Atl. 575. M. R. Co., 42 Minn. 82, 43 N. W. 

162. EUedge ▼. National Qty 787. 

& O. R. Co., 100 Cal. 282, 34 Pac. 165. Gilmore v. Mittineafirue 

720, 38 Am. St. Rep. 290. Paper Co., 169 Mass. 471, 48 N. E. 

163. Mullan v. Philadelphia, 623. See also Lee v. St. Louis, M. & 
ete.. Steamship Co., 78 Pa. St. 8. R. Co., 112 Mo. App. 372. 

25, 21 Am. Rep. 2. 



2076 Master and Sbbvant. §774 

tions of employees are admissible, including those made 
by the injured employee. To be admissible they must 
have been made under such circumstances and conditions 
and at such time as to have been a part of the res gestae. 
Thus a mere statement by an employee occupying a 
superior position to the employee injured, in effect that it 
was a part of the plaintiff's duty to examine cars as he was 
doing at the time he sustained the injury complained of, 
is but hearsay, and hence not admissible. ^^* 

So a report made by the plaintiff to his employer, in 
compliance with a rule, as to how his injuries were re- 
ceived, and his letters making claim for damages, are not 
admissible in his own behalf. ^^^ 

The declarations of a section foreman as to the condi- 
tion of the track, not made at the time of the accident, 
the cause of injury as alleged being a defect in the track, 
cannot bind the master. It is not a part of the res gestae; 
nor is it admissible as an expression of an opinion on the 
ground that he had notice of the condition of the track. 
Notice to him should be proven, either by calling him as a 
witness or by calling some one who gave him notice or 
heard it given to him."^ 

However, declarations of an engineer upon the spot at 
the time of the accident, as to matters connected there- 
with, is admissible as part of the res gestae.^** 

It has been held that declarations of a foreman in 
charge of the room where plaintiff was working, made 
immediately after the accident and while plaintiff was 
lying on the floor, tending to show the negligence of the 
foreman, were inadmissible.^^" 

166. Howard v. Savannah, F. & meston & S. R. Co., 72 la. 201, 33 
W. R. Co.. 84 Ga. 711, 11 S. E. N. W. 629. 

452. 169. Hanover R. Co. v. Coyle, 

167. Howard v. Savannah, F. 65Pa. St. 396. 

& W. R. Co., 84 Ga. 711, 11 S. B. 170. Riohstain v. Washington 
452. Mills Co., 157 Mass. 538, 32 N. E. 

168. Worden, Admr. v. Hu- 908. 



^ 774 Admissibimty of Evidekob. 2077 

Statements as to condition of appliances. 

It may also be shown by a witness, what he told a 
superintendent as to defective conditions, as where a 
sui>erintendent was told by him that he was afraid to 
work under a crane which subsequently fell, as tending 
to show that the attention of the company was called 
to the fact that the appliance was not safe, and was such 
as would cause a prudent man to inspect or make some 
inquiry of the employee for the cause of the danger. ^^^ 

Voluntary exclamations of pain and suffering. 

It seems that evidence of the voluntary exclamations 
which are natural concomitants and manifestations of 
pain and suffering are still admissible where they form a 
part of the res gestae, but complaints made which are so 
far detached from the occurrence as to admit of deliberate 
design, and of their being a part of a calculating policy 
on the part of the person injured, cannot properly be re- 
garded as a part of the res gestae. ^^^ 

Time intervening between accident and declaration. 

With respect to the time intervening between the acci- 
dent and the declaration, to constitute such a declaration 
a part of the res gestae, no definite time can be stated, but 
it must as a rule depend upon the character of the trans- 
action itself. However, such declarations are not to be 
deemed a part of the res gestae simply because of the brief 
period intervening between the accident and the making 
of the declaration. The declaration itself must have re- 
lated to the transaction as constituting a part of the res 
gestae, and must have been so connected with it as to 
distinguish it from a mere narrative of a past occurrence. 
This distinction is well illustrated in a leading case where 
declarations of an engineer as to the speed of a train when 
an accident happened, made between ten and thirty 
minutes after the accident occurred, was offered in evi- 

171. Ashley Wire Co. v. Mer- 172. Kennedy v. R. C. & B. R. 
eier, 163 DL 486, 46 N. E. 222. Co., 130 N. T. 654, 29 N. E. 141. 



2078 



Masteb and Sebvant. 



§774 



dence. It was held that it was in its essence the mere 
narrative of a past occurrencei and not a part of the res 
gestae."* 

The modem doctrine, it is said, has relaxed the ancient 
rule that declarations to be admissible as part of the res 
gestae must be strictly contemporaneous with the main 
transaction. It now allows evidence of them, when they 
api>ear to have been made under the immediate influ- 
ence of the principal transaction, and are so connected 
with it as to characterize or explain it."^ 

Declarations of deceased. 

In an action brought by the father as administrator, 
where his son was killed while in the employ of the 
defendant, it was held that the declarations of the de- 
ceased to a co-employee as to the cause of the injury, made 
a few minutes after it occurred, in a room adjoining the 
scene of the accident, was competent as a i>art of the res 
gestae."* 

A statement, however, made by an injured employee 
some time after the accident and before his death, it was 
held, was not competent as evidence. ^^* 



173. Vioksburg & Meridean R. 
v. O'Brien, 119 U. S. 99. See also 
Walker v. O'Connell, 59 Kan. 306, 
52 Pao. 894. 

174. JuBtioe Field in Vioksburg 
& Meridean Rd. v. O'Brien, 119 
U. S. 99; Hanover Railroad Co. v. 
Coyle, 55 Penn. St. 396; Hooker v. 
Chicago, M. & S. P. R. Co., 76 
Wis. 542; Felt v. Amidon, 43 Wis. 
467; Hermes v. Chicago & N. W. 
R. Co., 80 Wis. 590; In Hermes v. 
Chicago & N. W. R. Co., 80 Wis. 
590, the question propounded to a 
witness was as to whether he heard 
the engineer say anything as to how 
he came to run over the child. This 
conversation was within a few 



moments after the child was killed. 
It was said: ''There can be no 
doubt that what the engineer said 
about the accident was a part of 
the res gestae. The idea of the 
res gestae presupposes a main or 
principal transaction, and the res 
gestae mean the circumstanoea, 
facts and declarations which grow 
out of the main fact, are contempo- 
raneous with it, and serve to illus- 
trate its character." 

175. Christianson v. Pioneer 
Fur. Co., 92 Wis. 649, 66 N. W. 
699. 

176. Lendberg v. Brotherton 
Iron M. Co., 75 Mich. 84, 42 N. W. 
675. 



§775 



Admissibiutt of Evidenoe. 



2079 



§ 775 • Custom and customary methods. 

In former chapters the effect of a general custom upon 
the question of the exercise of ordinary care in respect to 
the master's duties, owing by him to his servant, has been 
considered. The competency of evidence as to customary 
methods is quite generally recognized, where the issue is 
the exercise of due care in the performance of duty.^^^ 

With respect to the master's duty in furnishing appli- 
ances, so far as character and kind are concerned, the 
question of general use has been fully considered under 
the chapter relating to appliances, and by the great 
weight of authority it appears that evidence as to such 
general use is not only competent but conclusive of the 
question of ordinary care. There is more of conflict upon 
the question whether the master is bound to adopt such 
as are in general use, but, upon authority as well as in 
reason, no such duty is required so long as those fur- 
nished are suitable and reasonably safe, and where evi- 
dence has been held admissible as to the character and 
kind of appliances in use elsewhere, where its purpose is 
to show negligence on the part of the master, it has 
generally been where there was a question whether those 
furnished by the master were suitable and reasonably safe, 
under circumstances where it may have a bearing upon 
the subject. "' 

Thus it was held that evidence was not admissible to 
show how the dock in question compared with the ordinary 
docks used for shipping lumber and shingles. The court 
very properly say: "The inquiry is not whether the dock 
was as good as others which were used for like purpose 
but whether it was reasonably safe for the defendant's 



177. Goodnow Mills v. Walpole 
Emery Mills, 146 Mass. 261, 15 
N. £. 576; Lafflin v. Railroad Co., 
106 N. Y. 136, 12 N. B. 699; Dou- 
gan v. Champlain Transp. Co., 56 
N. Y. 1 ; Lof tiis V. Union Ferry Co., 
84 N. Y. 455; Martin v. Railway 
Co., 94 Cal. 326, 29 Pao. 645; 
Richmond & D. R. Co. v. Jones, 92 



Ala. 218, 9 So. 276; Eolste v. Rail- 
road Co., 32 Minn. 133, 19 N. W. 
655; Kelley v. Railway Co., 28 
Minn. 98, 9 N. W. 588; Doyle v. 
Railway Co., 42 Minn. 82, 43 N. W. 
787; Georgia Pac. R. Co. v. Propst, 
83 Ala. 526, 3 So. 764. 

178. Wood y. Heiges, 83 Md. 
257, 34 Atl. 872. 



8 M. St S."""! 



2080 Masteb and Sbbvant. §775 



employees to work upon." The condition of the dock was 
in question, and not the character of the structure. ^^' 

Customary method of performing an act. 

Evidence as to the customary method of doing a partic- 
ular act is ordinarily admissible upon the question of the 
exercise of ordinary care. However, a negUgent act will 
not be excused by the fact that it is customary. Proof of 
custom, however, is evidence but not conclusive as to 
whether the act is negligent."^ 

But what persons customarily do under a similar 
eircimistance has no appUcation as a test of ordinary care, 
where the act is so obviously dangerous as to constitute 
negligence as matter of law.^^^ 

Rules and customs of operating trains. 

Matters of common knowledge do not require proof, but 
where otherwise are proper subjects of proof to determine 
the question of neghgence. Thus the rules and customs 
which govern the running of raihoad trains are not mat- 
ters of common knowledge, but are proper subjects of 
proof. ^'^ 

Custom may be shown as aiding to interpret con- 
tract of employment. 

While a usage or custom cannot be given in evidence to 
reUeve a party from his express agreement or to change 
a contract certain in its terms, yet it has its legitimate 
place in aiding to interpret the intention of the parties to a 
contract, the real character and purpose of which is to be 
ascertained, not alone from express stipulations, but 
also from general implications and presumptions arising 
from the nature and character of the employment. It was 
therefore competent to show as to who attended to report- 
ing missed holes in blasting operations in a mine in order 
to show as a question of fact what the assigned, assumed 

179. Propsom y. Leatham, 80 181. DouglaB r. Chioago, M. A 
Wis. 608, 60 N. W. 686. St. P. R. Co., 100 Wis. 405, 76 

180. Anderson v. Fielding, 92 N. W. 366. 

Minn. 42, 99 N. W. 367, 104 Am. 182. Kansas City, M. A B. R. 
8t. Rep. 665. ▼. Webb, 97 Ala. 167, 11 So. 888. 



^ 775 Admissibility of Evidbnob. 2081 



or customary duty, of shifts of men, was, and also what the 
general custom among the miners of the camp, who used 
the same drill and powder that the injured employee used 
when injured, and what the duty of a pusher was in caring 
for the safety of his men.^^* 



of rule. 

Upon the question of reasonable care, the employer is 
entitled to show that the appliance was put up or act done 
in the usual way.*** 

On the other hand, it is proper to show, in an action for 
negligence based upon unsafe appliances, by men familiar 
with the work, that a certain implement was proper and 
generally used for the kind of work in which the servant 
was engaged, and that such implement was not fur- 
nished him. The plaintiff should have been permitted 
to show that cant hooks were the proper appliances 
for moving piles. "*^ 

So it was held competent to show that there was no 
other awning on the road like the one which caused injury 
to an employee by brushing him from the train while the 
train was running by it."* 

And evidence of what a witness knew from his experi- 
ence on various roads, concerning the general custom as to 
a brakeman's duties in .obeying the orders of his con- 
ductor is admissible, where it does not appear that the 
printed rules furnished to defendant's brakeman con- 
tained any rule on this subject."^ 

Likewise, evidence that it was customary for brakemen 
to walk in front of moving cars to adjust couplings, is 
admissible though no rule on that subject has been 
promulgated. *•• 

183. Andenon y. Daly Min. M. R. Corp., 80 Me. 62, 12 Ail. 
Co., 16 Utah, 28, 50 Pao. 815. 797, 6 Am. St. Rep. 151. 

184. BnmB v. Sennett & Miller, 187. Gorman v. Mmneapolis 
99 Cal. 363, 33 Pao. 916. & St. L. R. Co., 78 lows, 509, 43 

185. Anderson v. Illinois Cent. N. W. 303. 

R. Co., 109 la. 524, 80 N. W. 561. 188. De Cair y. Manistee & 

186. Nugent y. Boston & C. Grand Rapids R. Co., 133 Mioh. 

578, 95 N. W. 726. 



2082 



Masteb and Sebvakt. 



§775 



But evidence of the custom in other factories as to box- 
ing machinery was held to be immaterial.^^ 

Other illustrations are given in the note below. ^*® 



189. Rooney v. Newell, etc., 
Cordage Co., 161 Mass. 153. 

190. In an action by a brakeman 
who alleged that his injuries were 
caused by a want of ballast in a 
part of the side track, it was held 
that it was competent to prove that 
it was not unusual for railroad 
comiMtniee to have in use unbal- 
lasted side tracks. Such evidence is 
competent on the question of what 
vigilance was required of a brake- 
man under such circumstances. 
The court say: "We have often 
decided that travelers when about 
to cross or walk on a railroad track, 
are required by common prudence 
to look and see whether any train 
is approaching. It would seem 
that a brakeman about to change 
links when the train is in motion, 
must be required by common pru- 
dence to look, if he can, and see 
what kind of a track he is to pass 
over." Again: "Surely he had no 
reason to assume or suppose that 
this side track was ballasted unless 
by the custom of railroad com- 
panies, such tracks were very gen- 
erally if not universally ballasted." 
The court after stating further the 
duty of the servant under such 
circumstances, concludes by saying: 
"And if it (the track) be not bal- 
lasted, ordinary care plainly re- 
quires that before attempting to 
change the links he should cause 
the moving cars to halt, and wait 
until they are at rest before ven- 
turing upon the undertaking." 
Pennsylvania Co. v. Hankey, 93 
111.580. 



COAIi HEAPED UPON TBNDEB. 

Where coal was heaped upon a 
tender and an employee on the 
track was injured by a lump falling 
and rebounding, striking him, it 
was held that negligence could not 
be predicated upon the fact that 
the coal was thus loaded, where it 
appeared that such manner was 
usual and customary. Atchison, T. 
& S. F. R. Co. V. Croll, 3 Kan. 
App. 242, 45 Pao. 112. 

CONDUCTOB, BETTING BRAKES. 

The negligence charged being that 
of the failure of the conductor to set 
the brakes and stop a detached 
portion of the train which moved 
forward causing the accident, evi- 
dence that it was customary for 
conductors of such trains to set 
the brakes on the caboose and stop 
such portion of their trains, was 
proper. Pearl v. Omaha & St. 
Louis R. Co., 115 la. 535, 88 N. W. 
1078. 

Constructing and filijng 
TRACKS. Evidence as to the usual 
custom of constructing and filling 
railroad tracks is admissible in an 
action by an employee complaining 
of defect, to show whether defend- 
ant used ordinary care in the con- 
struction of the particular track 
at the point in question. Hall v. 
Chicago, R. I. & P. R. Co., 140 
Iowa, 30, 116 N. W. 113., 

Crossings, manner of latino 
PLANKS. Evidence held competent 
as to the maimer in which planks 
at crossings were usually laid, on 
the question of ordinary care. 
Such evidence while competent is 



§775 



Admissibility of Evidbnob. 



2083 



not oondusiYe against defendant 
on the question of negligence of the 
master. Kelley v. Railway Co., 
28 Minn. d9, 9 N. W. 588. 

Coupling cabs. In the absence 
of a rule as to the method of coup- 
ling cars, it is competent to show 
the custom and duty of employees 
in making couplings. Louisville & 
N. R. Co. V. York, 128 Ala. 305, 
30 So. 676. 

EUPLOTICENT OF BOTB. It WaS 

said: No usage to employ boys of 
tender years to perform duties in- 
Yolving the personal safety of 
others, and which requires the 
exercise of a good degree of judg- 
ment and discretion, and constant 
care and watchfulness, will justify 
such employment unless the boy is 
in fact competent to perform such 
duties. Molaske v. Ohio Coal Co., 
86 Wis. 220, 56 N. W. 476. 

Getting on and opp foot 
BOARD. Evidence as to a custom 
of getting on and off foot boards of 
moving engines while switching in 
yards other than defendant's, was 
held to have been admissible as 
bearing on the question of the 
negligence of the engineer em- 
ployed. O'Mellia v. Kansas City, 
St. J. & C. B. R. Co., 115 Mo. 205, 
21 S. W. 603. 

QUARDING OPENING IN FLOORS. 

Evidence of the usage of builders 
as to the guarding the openings in 
floors of buildings in process of 
oonstmction, was held to be com- 
petent upon the question of whether 
an experienced carpenter, injured 
by falling through such an opening, 
was in the exercise of proper care. 
Murphy v. Greeley, 146 Mass. 
196, 15 N. E. 655. 

Guarding trenches. Testi- 
mony of witnesses as to what is the 



custom in other places with refer- 
ence to guarding trenches which 
were open under horse car tracks 
was held to have been rightly ex- 
cluded. Reference is made to Bai- 
ley V. New Haven & Northampton 
Co., 107 Mass. 496, and Hinckley 
V. Barnstable, 109 Mass. 126, as 
sustaining the ruling of the court. 
In the former case it was held that 
an expert cannot be asked what is 
the custom of railroads in main- 
taining a flagman at crossings, 
similar to the one there in question, 
or at crossings where there is one 
track, on the ground that what was 
sought to be proved was not 
properly a custom by which par- 
ties dealing together are bound, 
and which, when proved, tends to 
establish their rights as against 
each other, but was rather of a 
practice of railroad companies as 
to using or omitting a certain pre- 
cautionary measure at certain cross- 
ings. The need of a flagman at a 
I>articular crossing depends upon its 
situation and circumstances. The 
practice at each crossing would 
therefore raise a collateral issue. 
In the latter case it was held that 
evidence that it was usual for towns 
in the county to leave drains Tm- 
covered was inadmissible in the 
absence of evidence that the 
plaintiff knew of such practice. 
Craven v. Mayers, 165 Mass. 271, 
42 N. E. 1131. 

Jumping FROM TRAIN. An offer to 
prove that in jumping off the train 
at the time of the injury the em- 
ployee was only doing what was 
ordinarily done by defendant's 
employees, engaged in like employ- 
ment and under similar circum- 
stances, with the knowledge and 
approval of defendant's officers, was 



2084 



Masteb akd Sebvant. 



§775 



held to hftve been properly refused, 
as being an offer to show habitual 
carelessness and recklessness, which 
would not render the defendant 
liable. It was said, however, that it 
was not understood that this 
ofifer was to show that brakemen 
jumped on and off when the train 
was moving only at a "fast walk," 
but included that they did so with- 
out looking or being able to look 
where they would alight or what 
obstructions they would meet. 
Thompson v. Boston & Maine R. 
Co., 153 Ma«s. 391, 26 N. E. 1070. 

LONQ CONTIKUSD USE OF 

APPLIANCE. Evidence that an ap- 
pliance or machine, not obviously 
dangerous, has been in daily use for 
a long time, and has uniformly 
proved adequate, safe and conven- 
ient, is not only admissible, but, 
where it is not controverted, is 
suificient to justify a continuance 
of its use without the imputation 
of imprudence or carelessness. 
Stringham v. HUton, 111 N. T. 
188, 18 N. E. 870, 1 L. R. A. 483: 
Lafflin v. Railway Co., 106 N. Y. 
136, 12 N. E. 699. Burke v. With- 
erbee, 98 N. T. 562. The Massa- 
chusetts court do not adopt the 
foregoing rule to its full extent. 
Such evidence is admissible and is 
entitled to great weight, but is not 
conclusive. Myers v. Hudson 
Iron Co., 150 Mass. 125, 22 N. E. 
631, 15 Am. St. Rep. 176. 

Making couplinob. The usual 
custom of making couplings on a 
certain kind of engines, where not 
confined to the custom of the par- 
ticular road or at the particiilar 
place, where the custom sought to 
be proven is obviously dangerous, 
and it did not appear the defendant 
had adopted such custom, cannot 



be shown to excuse contributory 
negligence. Mayfield v. Savannah, 
G. & N. O. R. Co., 87 Ga. 374, 
13 S. E. 459. 

Manner blocking bails. It 
was held proper to show by a wit- 
ness that if guard rails were prop- 
erly blocked the foot of an em- 
ployee could not be caught between 
the rails, and also that it would be 
impossible for his foot to be caught 
in the kind of blocking used by 
defendant, as showing the particu- 
lar blocking was out of repair. Paine 
V. Eastern R. Co. of Minn., 91 Wis. 
340, 64 N. W. 1005. 

Manneb of constbuction of 
BAiLBOAD CUTS. Where the ques- 
tion to a witness was whether a cut 
was constructed as cuts were ordi- 
narily constructed on roads running 
through such places, it was held 
that it was rightly excluded, for the 
reason that railroad cuts are not 
made upon any recognized pattern, 
and the testimony offered would 
have been no aid to the jury with- 
out further testimony showing 
that the surroundings of other 
cuts were substantially similar to 
those of the cut where the accident 
happened, which would have in- 
volved collateral issues tending to 
confuse and mislead. Union Par 
ciflc Raibx>ad Co. v. O'Brien, 161 
U. S. 461. 

Manneb opbbating tbains. 
Where an employee was injured by 
the sudden stopping of a gravel 
train on which he was at work, it 
was held error to refuse defendant's 
offer to show by the engineer the 
manner in which the train was 
operated for some time prior to, and 
on, the day of the injury, for the 
purpose of showing that plaintiff 
was familiar with the movements 



§775 



Admissibility of Evidenob. 



2085 



thereof. Lake Shore & M. S. R. Co. 
v. Maloom, 12 Ind. App. 612, 40 
N. E. 822. 

Method of fastening belt. 
Eyidenoe is admissible to show that 
the method used in fastening belts 
was the usual and ordinary method, 
but it is improper to i>ermit the 
plaintiff to show that other fasten- 
ings oould have been used without 
proof that they were in oommon 
use. McCarthy v. Boston Duok 
Co., 165 Mass. 165, 42 N. E. 568. 

Looking afteb bafett of roofs 
IN mines. The customary method 
of doing the work in which an 
employee is engaged is a proper 
matter of inquiry. This rule per- 
mits evidence of a custom in a min- 
ing district that an operating com- 
pany should look after the safety 
of the roofs or entries to the mines 
and of the company's responsibility 
for the condition of such roofs when 
notified of their defects. Taylor y« 
Star Coal Company, 110 la. 40, 
81 N. W. 249. 

PaBTICULAR act, usual WAT. 

Where it is within the duty or scope 
of the employment of a servant to 
perform a i>articular and somewhat 
dangerous service, evidence of the 
usual way in which a like service 
was done by a fellow-servant is com- 
petent in his behalf to show that 
in performing the service on a 
particular occasion he was in the 
exercise of due care. Daley v. 
American Printing Co., 152 Mass. 
581, 26 N. E. 135. 

Ringing bell at crossing. It 
was held not competent for the 
defendant to prove that its serv- 
ants usually rang the bell at a cross- 
ing, and to ask the jury to infer 
therefrom that it was rung at the 
time of the accident. Neither Ss 



it competent for the plaintiff to 
prove that the defendant's serv- 
ants often, or usually, omitted to 
ring the bell at such crossing, and 
to ask the jury to infer that the 
bell was not rung at the time of the 
accident. Tuttle v. Fitohburg R. 
Co., 152 Mass. 42, 25 N. E. 19. 

Running engines; excessive 
SPEED. It was said that while the 
custom of running switch engines at 
an illegal and dangerous rate of 
speed is no defense, it is quite ap- 
parent that' if the deceased knew 
that the engines in the yard were 
constantly operated at such rate of 
speed, and chose without objection 
to remain in his employment, it was 
entirely competent to prove the 
fact as bearing upon the extent of 
the risk ijhe deceased voluntarily 
assumed. Abbot v. McCadden, 81 
Wis. 663, 61 N. W. 1079, 29 Am. 
St. Rep. 910. It was held that an 
assistant yard master was not, as 
matter of law, negligent in relying 
upon the custom of the master to 
operate its engine at a speed not 
exceeding six or eight miles an 
hour, where killed by this custom 
being violated by an engine run- 
ning eighteen or twenty miles an 
hour, and that the engineer was 
negligent in running his engine at 
the excessive speed at such place. 
Graham v. Minneapolis, St. P. & 
S. S. M. R. Co., 95 Minn. 49, 102 
N. W. 714. 

Running irregular or spe- 
cial TRAINS. Proof of a general 
custom to run irregular or special 
trains, not running on schedule 
time, is competent as affecting the 
question whether it is negligence so 
to operate them. Larson v. St. P. 
M. & M. R. Co., 43 Mum. 423, 45 
N. W. 722. 



2086 



Masteb and Sebvant. 



§776 



§ 776. General notoriety. 

Proof of general notoriety is generally admissible as 
tending to prove notice of a fact where such notice is a 
material inquiry; but it is never competent to prove the 
fact itself. This must be shown by other testimony."* 

In volume one of this work this rule has been considered 
in connection with the question of the admissibility of 
evidence relating to the competency of the negligent co- 
servant."* 

Evidence that the general impression among the men 
working in a shop was that a certain person was master 
mechanic on a certain date, is not admissible to prove 



SCRBBNING CIRCULAR SAW. The 

general castom of soieeniiig a small 
oiroular saw on maohines, is not es- 
tablished by the evidence of a single 
witness, that it is a custom to 
screen them, and that he has seen 
such devices or similar machines 
in another state, but never in the 
particular state. Joumeaux v. 
£. H. Stafford Ck>., 122 Mich. 396, 
81 N. W. 259. 

Unloadinq bai«e8 of cotton 
FROM CARS. Proof of customary 
methods of unloading bales of cot- 
ton from a car, and failure to ob- 
serve it, as evidence of negligence, 
held inadmissible. Such proof might 
be proper upon the question 
whether ordinary care was exer- 
cised. Sincere v. Union Compress 
& Warehouse Co., 40 S. W. (Tex. 
Civ. App.) 326. 

USB OF KNGINB WITH SLOPING 

TANK. Where it appears that the 
use of an engine with a sloping 
tank is safer than one having a 
square tank, evidence that a com- 
pany used one with a sloping tank 
in one of its own yards is admissible 
as indicating it had knowledge of 
that fact. Missouri Pacific R. Co. 
v. Lehmberg, 76 Tex. 61, 12 S. W. 



828; Missouri Pacific R. Co. v. 
Lamotte, 76 Tex. 219, 13 S. W. 
194. 

UbB of worn rails FOR BIDB 

TRACKS. Evidence is competent to 
show that it was a universal cus- 
tom of other railroads throughout 
the northwest to use partially worn 
rails for side tracks, upon the 
question of the care exercised. 
Doyle V. St. P. M. & M. R. Co., 42 
Minn. 82, 43 N W. 787. 

191. This rule was applied, and 
it was held not competent to show 
that the bridge in question had 
before been the means of killing 
another person, as tending to show 
the dangerous character of the 
bridge. Louisville & N. R. Co. v. 
HaU, 87 Ala. 768, 6 So. 277, 13 Am. 
St. Rep. 84, 4 L. R. A. 710. It 
seems that the court held that such 
notoriety of the dangerous char- 
acter of the bridge, coupled with the 
positive evidence of the happening 
of prior injuries, is proper to be 
shown upon the question of notice 
on the part of the company. Louis- 
ville & N. R. Co. V. Hall, 91 Ala. 
112, 8 So. 371, 24 Am. St. Rep. 863. 

192. See supra, S — . 



§ 777 Admissibiutt of Evidbncos. 2087 

sueh fact, but it is competent for such men to testify 
as to their recollection of the time when such a person 
commenced to act as master mechanic, it being an ad- 
mitted fact that he was master mechanic from and after 
a certain date; also any acts or parts of acts conducing 
to prove such person was acting in such capacity, with 
the knowledge and consent of the defendant, was ad- 
missible."* 

§ 777. Defects at other places. 

Evidence of other or similar defects is generally in- 
competent unless limited to those defects which caused 
or reasonably might have conduced to produce the 
injury. The mere existence of other defects in other 
parts of a railroad is not evidence that a similar defect 
existed at the place of the casualty and caused it. The 
exceptions to this rule are where the other defects are 
shown to be the result of a cause presumptively oi>erating 
at the place of the casualty or where such other defects 
might have caused the defect which produced the in- 
jury."* 

Thus, where the negligence charged as the cause of 
injury was in i)ermitting a track to be and remain out 
of repair, in that there was a broken rail and an imper- 
fect switch at or near the place of the accident, it was 
held error to admit evidence of other defects at other 
places in the road, where it was not shown that they had 
any connection with the accident. ^'^ 

The Texas court, however, seem to hold otherwise, 
and where it was alleged that a wreck was caused by a 
defective track, evidence was held admissible tending 
to show the condition of the road bed and track, imme- 

193. Tens Medoaa R. Co. v. ville & N. R. Co. v. Fox, 11 Bush. 
Dontfiam, 09 Tez. 694, 7 S. W. 77. 495. 

194. Mono y. Railway Co., 30 196. Morse v. Minneapolis & 
Minn. 468, 16 N. W. S5S; Grand St. L. R. Co., 30 Minn. 465, 16 N. 
Rainds & I. R. Co. v. Hnntley, 38 W. 358. 

Mioh. 540, 31 Am. Rep. 321 ; Loi]i»- 



2088 



Masteb and Sebvant. 



§777 



diately before and at the time of the wreck, at other 
places than where the wreck occurred."* 

And where a brakeman was injured by a derailment, 
evidence as to the track's condition some two hundred 
3rards from the point of accident was held admissible, 
where there was no evidence definitely fixing the place 
of derailment."^ 



196. Taylor v. B. & H. R. Co., 
79 Tex. 104, 14 S. W. 918. 23 Am. 
St. Rep. 316. This case probably 
oame within the exception to the 
role stated, as well as the two oases 
following. In one the plaintiff 
was injured by ooming in contact 
with wires of the defendant's line 
which had become detached from 
the i>oles and were lying loose upon 
the ground. The plaintiff intro- 
duced evidence to show that the 
wires were down at other places or 
had been down within a short time 
previous. The court say: "We 
are not prepared to say that there 
was any error in admitting the evi- 
dence, so far as it was limited to 
proof of the fact that wires and 
poles were down at the times and 
places mentioned by the witnesses. 
It was probably inadmissible for 
the purpose of showing that other 
persons had suffered injury from 
the fact of the falling of the poles 
or wires, but the fact that the pole 
and wire were down at other places 
and times, within a few miles of 
the place and within a few months 
of the time when plaintiff was in- 
jured would seem to us competent 
proof upon the question of the neg- 
ligence of the company in main- 
taining the line in a safe condition. 
. . . The fact that the evidence 
related to a time a few months be- 
fore the accident or a few mUes 
distant therefrom, would render 



the proof less conclusive than 
though it had been related to a 
time a few days before the accident 
or a place very near, but it would 
not affect the competency of the 
proof." Randall v. Telegraph Co., 
64 Wis. 142, 11 N. W. 419. In the 
other where an employee was in- 
jured while at work on a dock, 
caused by reason of a defect there- 
in, evidence was admissible showing 
that the dock was defective at 
many places by reason of holes 
therein other than the one causing 
the injury to such emplo3ree. Prop- 
son V. Leatham, 80 Wis. 608, 50 
N. W. 686. While as stated, it is 
not permissible to show a particu- 
lar defect at other places, similar 
to the defect complained of, yet it 
would seem to be pennissible to 
show, if it were a fact, the general 
bad condition of the road or struc- 
ture. Where it was charged that 
the roughness of the road bed was 
one of the contributing causes of 
the accident, it was held proper for 
the plaintiff to prove any part of 
the road on which the train had 
run on the trip in question was 
rough and uneven, but it was not 
proper to prove the general condi- 
tion of the road in other respects 
or other localities. Haley v. Jump 
River Lbr. Co., 81 Wis. 412, 61 N. 
W. 321. 

197. Louisville & N. R. Co. v. 
Stewart's Admr., 131 Ey. 666. 



§778 



Admissibility of Evidence. 



2089 



So where the question was whether a machine was 
out of alignment, the fact that other machines of a 
similar character on the same floor were not properly 
aUgned may be shown, in connection with other evi- 
dence of the existence of a general cause which might 
contribute to the disturbance of the alignment of all the 
machines upon that floor. ^'^ 

On the other hand, evidence of defects in the track in 
other parts of the mine has been held inadmissible,^^ as has 
evidence of the automatic starting of another spinning 
frame in the mill.^ 

Where it was alleged that the cause of a broken rail 
was a rotten tie, evidence is not admissible that defend- 
ant had allowed its roadbed and its rails to fall into 
bad repair generally, and at places other than that of 
the accident.*^ 

§ 778. Conditions prior and subsequent. 

For the purpose of showing the condition of an appli- 
ance or place at the time of an accident, alleged to have 
been caused by a defect therein, evidence is admissible, 
in connection with proof that its condition has not been 
changed as to its condition at a subsequent period, and 
as to its prior condition, the latter for the additional 
purpose of showing knowledge on the part of the defend- 
ant of the alleged defect, if in fact it existed.^' 



198. standard Cotton MilU ▼. 
Cheatham, 125 Qa. 649, 54 8. £. 

eso. 

199. Last Chanoe Mining & M. 
Co. Y. Ames, 23 Colo. 167, 47 Pao. 
382. 

200. Foontaine v. Wampanoafir 
Mills, 189 Mass. 498, 75 N. E. 738. 

201. Briggs y. East Broad Top 
R. & C. Co., 206 Pa. St. 564, 56 
Atl. 360. 

202. Union Paoifio R. Co. y. 
Edmonson, 77 Neb. 682, 110 N. W. 
650; Pioneer Cooperage Co. y. Ro- 
manwioz, 186 HI. 9, 57 N. E. 864; 



Gutridge y. Missouri Pao. R. Co., 
94 Mo. 468, 105 Mo. 520, 7 S. W. 
476, 4 Am. St. Rep. 392. See also 
Gulf Co. & S. F. R. Co. y. Johnson, 
83 Tex. 628, 19 S. W. 151. Condi- 
tion before aoddent, evidence held 
admissible. Shea v. Paoiflo Power 
Co., 145 Cal. 680, 79 Pao. 373; Is- 
land Coal Co. v. Neal, 15 Ind. 
App. 15, 42 N. E. 953 ; Dimekake v. 
Beyer, 25 Ky. L. Rep. 2001, 79 S. 
W. 209; Andrious' Admr. v. Pine- 
ville Coal Co., 121 Ky. 724, 90 S. 
W. 233; Doyle y. Missouri, K. ft 
T. Trust Co., 140 Mo. 1, 41 S. W. 



2090 



Mastbb and SsBVAirr. 



§778 



On the other hand, if there have been changes or 
repairs in the meantime, the evidence is ordinarily not 
admissible.^* Of course, if the condition after the acci- 
dent is the result thereof, the evidence of the subsequent 
condition is at least insufficient to prove the defective 
condition, '^^ and it has been held inadmissible.^ 

There is some conflict in the decisions as to whether 
it is necessary in all cases for preliminary proof that 



255; Davis v. Holy Terror Min. 
Co., 20 S. D. 399, 107 N. W. 374. 
Ck>]iditio]i after aoddent, evidence 
held admissible. Creamery Pack- 
age Mfg. Co. V. HotsenpiUer, 159 
Ind. 99, 64 N. E. 600; Brooke v. 
Chicago, R. I. & P. R. Co., 81 la. 
604. 47 N. W. 74; Mixter v. Impe- 
rial Coal Co., 152 Pa. St. 395, 25 
Atl. 587; Gulf, C. & S. P. R. Co. 
V. Johnson, 83 Tex. 628, 19 S. W. 
151; Meyers v. Highland Boy Gold 
Min Co., 28 Utah, 96, 77 Pao. 347. 
Where the imperfect condition of 
a machine upon which an employee 
was working was alleged to be due 
to defects in the pulleys used in 
running the machine, it was held 
competent, after showing that the 
ptdleys were in the same condition 
at the time of the trial, that the 
working condition of the machine 
was the same, and that the speed 
of the engine and machinery was 
the same at the time when the 
speed was taken as at the time of 
the accident, to show what that 
speed was; that the machine and 
pulleys were in good condition at 
the time of the trial and at other 
times shortly before and after the 
aoddent, and that the machine 
worked perfectly before and ever 
since the accident, the admission 
of such evidence having a tendency 
to show what the condition of the 



machine was, and how it operated 
at the time of the accident. Trem- 
blay V. Hamden, 162 Mass. 383, 
38 N. E. 972. 

203. Robinson V. Charles Wright 
& Co., 94 Mich. 283, 53 N. W. 
938; Redus v. Milner Coal & 
R. Co., 148 Ala. 665, 41 So. 634; 
Bernard v. Pittsburg Coal Co., 
137 Mich. 279, 100 N. W. 396; 
Jones V. N. Y., N. H. & H. R. Co., 
20 R. I. 210, 37 Atl. 1033. Where 
an employee was injured while op- 
erating an elevator, the testimony 
of a former employee as to the con- 
dition of the elevator six months 
prior to the accident was held inad- 
missible, where it appeared the 
elevator had been repaired three 
months before the action. It was 
also held that negligence could not 
be predicated on the fact that im- 
mediately after the accident some 
parts of the machinery of the ele- 
vator were found and out of place 
and loosened, as the strain upon 
the machinery trom the fall of 
thirty feet would tend to impair it. 
Robinson v. Charles Wright & Co., 
94 Mich. 283, 53 N. W. 538. 

204. Perry v. Michigan Cent« 
R. Co., 108 Mich. 130, 65 N. W. 
608. 

205. Robinson v. Wright, 94 
Mich. 283, 53 N. W. 938. 



§779 



Admisbibilitt of Evidbnoe. 



2091 



conditions have not changed, especially where the evi- 
dence relates to a short time before or after the accident; 
but the better rule seems to be, in the latter case, that 
if there is no evidence of a change the evidence is ad- 
missible. "• 

§ 779. Other accidents at same placei from same appli- 
ance, and from same cause. 

As to whether it is competent to* show that other 
persons have been injured, at the same place and in the 
same manner, there seems to be some conflict in the 
authorities which, however, is more apparent than real. 
In the earlier cases, it was quite generally held that 
such evidence was inadmissible upon the ground of its 
collateral character, and as furnishing no legal presump- 
tions as to the principal facts in dispute. ^^ 

Some of the earher cases, however, and quite generally 
the later cases, hold that evidence of other persons having 
sustained similar injuries by the same means and at the 
same place is competent, as tending to show the de- 
fective character of the way or appliance as well as no- 
tice of such defect."' 



206. See Doyle v. Missouri, E. 
& T. Trust Co., 140 Mo. 1, 41 8. 
W. 256. 

207. See Ck>llins v. Dorchester, 
6 Cosh. 396; Aldrioh v. Pelham, 1 
Gray, 510; Cohen v. Hamblin- 
RusseU Mfg. Co., 186 Mass. 544, 
71 N. E. 948; J. Van Edwards v. 
Barber Asphalt Pav. Co., 92 Mo. 
App. 221. Where the question 
under oonsideration, in a case not 
a master and servant case, was 
whether it was competent to show 
that other horses had been fright- 
ened at the same pile of lumber 
which caused fright to plaintiff's 
horse as competent proof to show 
its character in that respect, the 
court with some sarcasm, remarked : 
'The law is a practical science, and 
when it is appealed to to direct 



what means shall be used to find 
out whether a certain pile of lum- 
ber is likely to frighten horses, if 
any one asserts that on this sub- 
ject, the law prefers speculation to 
experience, abhors actual experi- 
ment and delights in guess work, 
a person advancing such a prop- 
osition takes upon himself the task 
of maintaining it upon some legal 
rule, distinctly stated by him and 
well established by the author- 
ities. Such a proposition is not 
sustained by the reason of the law. 
It is sustained by nothing that is 
justly called a principle." Dar- 
ling V. Westmoreland, 52 N. Hamp. 
401. 

208. Davis v. Komman, 141 
Ala. 479, 37 So. 789; Georgia Cot- 
ton Oil Co. V. Jackson, 112 Ga. 620, 



2092 



Masteb akd Sbbvant. 



§779 



So evidence of like injuries received after the injury 
to plaintiff, from the same machine and the same defect, 
is admissible. ^' Such evidence as to injuries, before or 
after, is not admissible, however, where the conditions 
were different. **• 

Not admissible to show negligence but to prove 
defect or notice. 

It was held that proof of a similar accident from the 
same cause is not ordinarily admissible for the purpose 
of proving the employer's negligence at the time of the 
injury to an employee, but where the injury is caused 
by a defect in a machine or other appliance, such evi- 
dence is competent to prove the defective character of 
the machine and the employer's knowledge of the fact, 
and the jury should be so instructed when received. 



37 S. E. 873; Auld v. Manhattan 
Life Ins. Co., 34 App. Div. 491, 54 
N. T. Supp. 222; Harrison v. New 
York C. & H. R. R. Co., 195 N. 
T. 86; District of Columbia v. 
Armes, 107 U. S. 519, 2 Sup. Ct. 
840; Federal Lead Co. v. Lohr, 179 
Fed. 692; Louisville, N. A. & C. 
R. Co. V. Wright, 115 Ind. 378, 16 
N. E. 145, 7 Am. St. Rep. 432; 
Franke y. Hanly, 215 ni. 216, 74 
N. E. 130; Frazer & Chalmers v. 
Sohroeder, 163 m. 459, 45 N. £. 
288; Clapp v. Minneapolis & St. 
L. R. Co., 36 Minn. 6, 29 N. W. 
340, 1 Am. St. Rep. 629; Galvin v. 
Brown & McCabe, 53 Or. 598; 
Walker v. Newton Falls Paper Co., 
Ill App. Div. 19, 97 N. Y. Supp, 
521; Dorsett v. Clement-Ross Mfip. 
Co. 131 N. C. 254, 42 8. £. 612; 
Hansen v. Seattle Lumber Co., 
41 Wash. 349, 83 Pao. 102. 
Not admissible where not asoer- 
tained by master until after 
injury to plaintiff. Roche v. 



Llewellyn Ironworks Co., 140 Cal. 
563, 74 Pao. 147. Evidence that 
another miner was found dead at 
or near the intestate is admissible 
as tending to show that intestate 
came to his death from suffocation 
or some other unnatural cause. 
Alabama Consol. Coal St Iron Co. v. 
Heald, 154 Ala. 580. It was held 
that evidence was competent to 
show that other persons had fallen 
upon the alleged defective sidewalk. 
District of Columbia v. Armes, 107 
U. S. 519, 2 Sup. Ct. 840; Quinlan 
V. aty of Utica, 74 N. Y. 603. 

209. Moran v. Corliss Steam- 
Engine Co., 21 R. L 386, 43 Atl. 
874, 45 L. R. A. 267. 

210. Bach y. Iowa Cent. R. Co., 
112 la. 241, 83 N. W. 959; Gus- 
tafson V. Toung, 91 App. Div. 433, 
86 N. Y. Supp. 851; Martin v. 
Cook, 60 Hun 577, 14 N. Y. Supp. 
329. See also Weigand v. Atlantto 
Refining Co., 189 Pa. St. 248, 42 
AU. 132. 



§ 779 Admissibiutt op Evidbnob. 2093 

Thus, where the injury was received while operatmg a 
machine, caused by alleged defective construction, it was 
held competent to prove that on former occasions while 
it was being operated by another, the machine worked 
in a similar manner as when the employee was injured. '^^ 

So evidence is admissible to show that an appUance 
had on former occasions failed to properly operate, of 
which the defendant was charged with knowledge. ^^' 

Where an employee was injured while coupling cars, 
caused, as was alleged, by the overlapping of the dead 
woods, which was owing to the different character of 
the cars used, it was held that the admission of testimony 
showing that similar accidents had occurred on defend- 
ant's road, was error, and it was said: Where it is 
important to show that a defendant had notice of the 
dangerous character of a defect which caused the injury, 
testimony is competent to prove other similar accidents; 
such evidence is not competent where it can have no 
bearing upon the issue presented. In this case it did not 
tend in any degree whatever to the establishment or 
support of the plaintiff's cause of action to show that 
the defendant had knowledge of the dangers incident 
to the coupling of such cars as those which were the occa- 
sion of the plaintiff's injury.*" 

Evidence as admissible to show others had not 
been injured. 

Whether evidence is competent to show that injury 
had not been occasioned others from the use of an appli- 
ance, or condition of a place, for the purpose of tending 
to show due care in maintaining the same or the condition 
thereof, is a question upon which the courts are not 
agreed. Some courts hold that such evidence is incom- 

211. Brewing Co. v. Banner, Co., 150 Mass. 125, 22 N. E. 631, 
50 Ohio St. 550, 35 N. E. 55, 40 15 Am. St. Rep. 176. 

Am. 8t. Rep. 686. 213. Dye v. Del. L. ft W. R. 

212. Myers ▼. Hudson Iron Co., 130 N. T. 671, 29 N. E. 320. 



2094 



Masteb and Servant. 



§779 



petent,^^^ while others hold that such evidence is com- 
petent.*" 

In New York the court of appeals has sanctioned this 
as a rule: "When an appliance or machine, not obvi- 
ously dangerous, has been in daily use for a long time, 
and has uniformly proved adequate, safe and conven- 
ient, its use may be continued without imputation of 
imprudence or carelessness. "*^^ 

The supreme court of Massachusetts, in referring to 
this rule, reject it as such, but state that the fact (with 
reference to the case before them) that no person had been 
hurt is entitled to much weight, but was not conclusive 
of defendant's due care.*^^ 

So evidence that the machine was afterwards operated 
by others without any accident has been held not 
admissible.*" 

The Minnesota court is among those which hold that 
evidence is admissible showing that other accidents had 
not occurred from the same defect or cause complained 



214. Branch v. Libbey, 78 Me. 
321, 5 Atl. 71; Sheeban v. Ham- 
mond, 2 Cal. App. 371, 84 Pao. 340; 
Hudson Y. Raihroad Co., 59 la. 581, 
13 N. W. 735; Kirohoff v. Hobna- 
behn C. S. Co., 123 N. W. (la.) 210; 
Sohoonmaker v. Wilbrabam, 111 
Mass. 134; Burs^ess v. Davis Sul- 
pbur Ore Co., 165 Mass. 71; Hub- 
bard Y. Concord, 35 N. Hamp. 52; 
Chicago, W. & V. Coal Co. v. 
Brooks, 138 m. App. 34; Mobile 
& O. R. Co. V. Vallowe, 214 111. 124, 
73 N. E. 416; Hodges v. Bearse, 
129 ni. 87, 21 N. E. 613; MueUer 
Y. Northwestern Iron Co., 125 Wis. 
326, 104 N. W. 67. 

215. Field v. Davis, 27 Kan. 
400; Southern R. Co. v. MoLellan, 
80 Miss. 700, 32 So. 283; String- 



ham Y. HUton, 111 N. Y. 196, 18 
N. E. 870, 1 L. R. A. 483; Lafflin 
Y. Raibroad Co., 106 N. Y. 136, 12 
N. E. 599; Burke v. Wetherbee, 
98 N. Y. 562; T. & H. Pueblo B. 
Co. Y. Klein, 5 Colo. App. 348, 38 
Pao. 608. 

216. Stringham v. Hillon, 111 
N. Y. 196, 18 N. E. 870, I L. R. A. 
483; Lafflin y. Raibroad Co., 106 
N. Y. 136, 12 N. E. 599; Burke v. 
Witherbee, 98 N. Y. 562. See also 
supra, vol. 1. 

217. Myers v. Hudson Iron 
Co., 150 Mass. 136, 22 N. E. 631, 
15 Am. St. Rep. 176. 

218. Republic Iron & Steel 
Works v. Gregg, 24 Ky. L. Rep. 
1627, 71 S. W. 900. 



§ 780 Admissibility of Evidence. 2095 

of. It, however, asserts that such evidence should 
probably only be received where there is doubt as to 
the existence of the defect complained of or where the 
dangerous character or nature of the thing complained 
of would not be obvious as a matter of common knowl- 
edge or experience, and thus, it reasons, if such evidence 
is admissible to show that what is complained of was 
of a dangerous character, it must be that evidence would 
be adnodssible on the other side to show that in a long 
continued use of such instrumentalities accidents had 
been unknown. That would be a proper means of show- 
ing that a thing which was not obviously dangerous 
was not so in fact.*** 

It has been held in Indiana, however, that evidence is 
incompetent to show that no other person has been injured 
in consequence of the use of the appliance or the defect. 
That proof of immunity of other persons from injury 
affords no sufficient basis for a presumption that the 
appliance or place is sound or safe.**^ 

And in Iowa evidence was held inadmissible to show 
no accident had occurred at the particular bridge, which 
was improperly constructed, during the nine years of its 
existence.*** 

§ 780. Other manifestations of same defect in appli- 
ance or like appliance. 

Evidence that the appliance or like apphances had 
on previous or subsequent occasions proved defective 
in the same manner as claimed to be defective at the time 

219. Doyle v. Raflwsy Co., 42 Kemper, 163 Ind. 618, 53 N. E. 
Miim. 82, 43 N. W. 787; Phelps v. 031. 

City of Mankato, 23 Minn. 276; 221. Bryoe v. Chicago, M. & 

KeUey v. Railroad Co., 28 Minn. St. P. R. Co., 103 la. 665, 72 N. W. 

98, 9 N. W. 588; Morse v. Railroad 780. See also Hudson v. Chicago 

Co., 30 Minn. 465, 16 N. W. 358. & N. W. R. Co., 59 la. 581, 13 N. 

220. Louisville & N. R. Co. v. W. 735. 



3 M. & S.— 8 



2096 



Mabteb and Sebyant. 



§§ 781, 782 



of injury, has been held admissible,*'* although there 
are authorities to the contrary.**' 

§ 781. Other negligence of defendant 

Evidence of the negligence of defendant at another 
time or place is not admissible.**^ 

So where the negligence of a co-servant is alleged, 
evidence that he had been negligent on other occasions 
is not admissible.**^ 

In order to show the negligence of defendant, evidence 
is ordinarily not admissible to show other distinct acts 
of negligence or a custom of being negUgent. On the 
other hand, evidence that a railroad company ordinarily 
keeps its tracks in good condition is not admissible.*** 

§ 782. Repairs or changes after accident. 

Except iQ Kansas,**^ and Pennsylvania, **• the mere 
fact that after the accident the defendant took precau- 
tions to prevent a repetition of the same, is inadmissible 
as evidence of negligence at the time or that the premises 
or appliances were not in proper condition.*** 



222. HouBton Biaooit Co. v. 
Dial, 136 Ala. 168, 33 So. 268; Wa- 
bash Screen Door Co. v. Blaok, 126 
Fed. 721. 61 C. C. A. 339. The 
evidence of prior occtixrenoes of a 
similar nature, conditions remain- 
ing the same, within two or three 
months prior to the accident, de- 
fects in an appliance being in ques- 
tion, was admissible. Revolinski 
y. Adams Coal Co., 118 Wis. 324. 
Also that the machine claimed to be 
defective causing the injury, at a 
short time subsequent, while in 
the same condition, injured an em- 
ployee. Georgia Cotton Oil Co. 
V. Jackson, 112 Ga. 620, 37 8. E. 
873. Also that other shears made 
by the defendant for similar use, 
had broken, as tending to establish 



a duty of inspection. Paoheo ▼ 
Judson Mfg. Co., 113 CaL 641, 45 
Pac. 833. 

223. Walker v. Williamson, 205 
Mass. 614, holding that such evi- 
dence raises collateral issues and is 
properly excluded in the discretion 
of the trial judge. 

224. Snowden v. Pleasant V. 
Coal Co., 16 Utah, 366, 62 Pac. 
699. The defendant having shown 
the care, inspection and condition 
of a machine causing the accident, 
evidence is inadmissible as to the 
care used with respect to other ma* 
chines. Houston v. Brush, 66 Vt. 
331, 20 Atl. 380. 

226. Robinson v. Denver City 
Tramway Co., 164 Fed. 174; Kon- 
old V. Rio Grande R. Co., 21 Utah, 



§782 



Admissibility of Evidbnob. 



2097 



The reasons given for the rule are ample and con- 
vincing. Thus it is said: ''If the fact admitted of such 
an inference (referring to an inference of defect from the 



379, 60 Pao. 1021, 81 Am. St. Rep. 
603. 

226. Ft. Worth & D. C. R. Co. 
v. Thompson, 2 Tez. Civ. App. 
170, 21 8. W. 137. 

227. Consolidated Kansas City 
Smeltinc: & Refining Co., 5 Kan. 
App. 130, 48 Pac. 889; St. Louis & 
S. P. R. Co. V. Weaver, 35 Kan. 
412, 11 Pac. 408, 67 Am. St. Rep. 
176. Contra, Cherokee & P. Coal 
& C. Co., 3 Kan. App. 292, 45 Pao. 
100. Thus, where repairs are made 
upon a xnachine or applianoe after 
an aooident has ooouired thereat, 
evidence of such repairs is held 
competent as tending to show that 
it was not safe at the time of the 
accident. Atchison, T. & 8. F. R. 
Co. V. McKee, 37 Kan. 592, 15 
Pac. 484; Railway Co. v. Retford, 
18 Kan. 245; City of Emporia v. 
Schmidleing, 33 Kan. 485; City of 
Abilese v. Hendricks, 36 Kan. 196. 
Where the cause of injury was al- 
leged to be the incapacity of a pas- 
sage way for water, it was competent 
to prove that after the accident 
occurred the capacity of such water 
way was enlarged, as an admission 
on the part of the defendant that 
the water way was originally too 
small. But such evidence of itself 
does not conclusively prove negli- 
gence, nor notice of its insuffioienoy 
prior to the accident, nor that the 
defendant might have had notice 
by the exercise of proper diligence, 
nor that it did not exercise such 
diligence. 8t. Louis & 8. F. R. Co. 
V. Weaver, 35 Kan. 412, 11 Pac. 
406» 57 Am. Rep. 176. 



228. In Pennsylvania such evi- 
dence is admissible as an admission 
that defendant was negligent in not 
having before made the repairs. 
Pennsylvania R. Co. v. Henderson, 
51 Pa. St. 315; McKee v. Bidwell, 
74 Pa. St. 218; Westchester & P. 
R. Co. V. McElwee, 67 Pa. St. 311. 

229. Columbia & Puget Sound 
R. Co. V. Hawthorne, 144 U. S. 
202; Lang v. Sanger, 76 Wis. 71, 
44 N. W. 1035; Castello v. Land- 
wehr, 28 Wis. 524; Downey v. 
Sawyer, 157 Mass. 418, 32 N. E. 
654; Shinners v. Props, Locks & 
Canals, 154 Mass. 168, 28 N. E. 
10; Menard v. Boston & Maine R. 
Co., 150 Mass. 386, 23 N. E. 214; 
Whelton v. West End St. R. Co., 
172 Mass. 555, 52 N. E. 1072; Dou- 
gan V. Champlain Trans. Co., 56 
N. Y. 1; Baird v. Daley, 68 N. Y. 
547: Corcoran v. Peekskill. 108 N. 
Y. 151, 15 N. E. 309; Nally v. 
Hartford Carpet Co., 51 Conn. 
524, 50 Am. Rep. 47; Sievers v. 
Peters Box & Lumber Co., 151 Ind. 
642, 50 N. E. 877; Terre Haute & 
Ind. R. Co. V. Clem, 123 Ind. 15, 
23 N. £. 965; Hodges v. Perdval, 
132 ni. 53, 23 N. E. 423; Cramer v. 
Burlington, 45 la. 627; Hudson v. 
C. & N. W. R. Co., 59 la. 581, 13 
N. W. 735; Morse v. Minn. & St. 
L. R. Co., 30 Minn. 465, 16 N. W. 
358; Motey v. Pickle Marble & 
Granite Co., 74 Fed. 155; Howe 
V. Medaris, 183 lU. 288, 55 N. E. 
724; Helling v. Schindler, 145 Cal. 
303, 78 Pac. 710; Leinberg v. Glen- 
wood Lbr. Co., 127 Cal. 598; Krei- 
der V. Wis. Riv. P. & P. Co., 110 



2098 



Master and Sebvant. 



^782 



fact of makiBg repairs), then the fact that a person at 
a certain time commences using and exercising eztra- 



Wia. 645, 86 N. W. 662; Davis v. 
Eommaa, 141 Ala. 479, 37 So. 789; 
St. Louis 8. R. Co. v. Plumlee, 78 
Ark. 147, 96 8. W. 442; Aiken v. 
Rhodhiss Mfg. Co., 146 N. C. 324, 
59 S. E. 696; Morancy v. Hennes- 
sey, 24 R. I. 205, 52 Atl. 1021; 
Worthy v. MiU, 77 8. C. 69, 57 S. 
E. 634, 11 L. R. A. 690, n. s.; St. 
Louis S. R. Co. V. Arnold, 39 Tex. 
av. App. 161. 87 S. W. 173; Vir- 
ginia & N. C. Wheel Co. v. Chalk- 
ley, 98 Va. 62, 34 S. E. 976; Place 
V. Grand Trunk R. Co., 82 Vt. 42, 
71 Atl. 836; Hairston v. United 
States Coal & C. Co., 66 W. Va. 
324, 66 S. E. 473. The liability of 
the defendant must be determined 
from what took place at the time of 
the accident. Colorado Electric 
Co. y. Suffers, 11 Colo. 505, 19 Pac. 
479, 7 Am. St. Rep. 255. 

GuABD TO PLANEB. It was held 
not error to exclude evidence that 
a guard to a planer was made the 
day after the accident, the com- 
plaint being that injury to an em- 
ployee was sustained by reason of 
the want of a guard over the knives. 
Silva V. Davis, 191 Mass. 47, 77 N. 
£. 525. And the same where 
guards placed at the side of an ele- 
vated tramway to prevent cars 
from falling. Barber Asphalt Pav- 
ing Co. V. Odasz, 60 Fed. 71. 

MoTORMAN, DI8CHABGE OF. Evi- 
dence is inadmissible to show the 
discharge of a motorman after an 
accident for the purpose of proving 
that his employer considered he 
had been careless or was incompe- 
tent. Hewitt V. Tainton St. R. 
Co., 167 Mass. 483, 46 N. E. 106. 



Removal of machinebt. It 
was error to admit evidence as to 
the removal of certain machinery, 
the alleged negligence being its 
location subsequent to the injury 
complained of. Meyers y. Con- 
cord Lbr. Co., 129 N. Car. 252, 39 
S. E. 960. 

FOBMBB DECISION TO THE CON- 

TBABT IN Minnesota ovbbbtjledw 
The Supreme Court of Minnesota 
in several decisions has held such 
evidence competent, but in Morse 
y. Railway Co., 30 Minn. 46&, 16 
N. W. 358, it overruled its former 
decisions and stated that upon 
principle they were wrong; not for 
reason given by some courts, that 
the acts of the employees in making 
such repairs are not admissible 
against their princii>al, but upon 
the broader ground that such acts 
afford no legitimate basis for con- 
struing such an act as an admission 
of previous neglect of duty. A per- 
son, it is said, "may have exercised 
all the care which the law required, 
yet in the light of his new experi- 
ence, and after unexpected acci- 
dent has occurred, and as a measure 
of extreme caution, he may adopt 
additional safeguards. The more 
careful a person is, and the more 
regard he has for the lives of others, 
the more likely he would be to do 
so; and it would seem unjust that 
he could not do so without being 
liable to have such acts construed 
as an admission of prior negligence. 
We think such a rule puts an unfair 
interpretation upon human con- 
duct, and virtually holds out an in- 
ducement for continued negli- 
gence." 



§782 



Admissibility of Evidence. 



2099 



ordinary care in a given case may be used against him 
to prove that before such time he had failed to use rea- 
sonable and ordinary care,"^**^ 

And again: "To show the fallacy of the rule (speak- 
ing of a contrary one adopted by the trial court), it is 
only necessary to say that the gang way and saw guard 
might have been out of repair to an extent only that 
could not have caused the injury or rendered tie de- 
fendants liable, and yet may have been afterwards re- 
paired. The defendants were entitled to that presump- 
tion and therefore subject to no other." ^'^ 

Substitution of new for old appliance. 

A change made, substituting an entirely new appa- 
ratus, is no indication that the earher one was defective, 
nor are changes made after an accident evidence of 
negligence in the use of the former. ^'^ 

Nor is evidence of the substitution of a new for an 
old block (in frogs), for the purpose of originating an 
inference or an implied admission of negUgence, because 
of failure to make substitution at an earlier period, 
admissible.^" 

Or that subsequent to an injury caused by the opera- 
tion of a piece of machinery made of iron, defendants 



230. Castello v. Landwehr, 28 
Wis. 524. 

231. Lang v. Sanger, 76 Wis. 
75, 44 N. W. 1095. Evidenoe to 
the effect that the switch engine 
by which plaintiff was injnred had 
been repaired since the accident, 
was held to be inadmissible. The 
ground upon which such testimony 
should be excluded was said to be 
two fold. 1st, That the making 
of repairs to a piece of machinery 
after an accident had occurred, has 
no legitimate tendency to show that 
such piece of machinery was not 
in an ordinarily safe and fit condi- 



tion for use before such repairs were 
made. 2nd, Because the admission 
of such evidence for the purpose 
showing that defendant had been 
negligent, had a strong tendency to 
discourage employers in maldng 
alterations and repairs. Atchison, 
T. & S. F. R. Co. V. Parker, 65 Fed. 
5^5 

232. Domney v. Sawyer, 157 
Mass. 418. 

233. Hipsley v. Railroad Co., 
88 Mo. 348; Brennan v. St. Louis, 
92 Mo. 482, 2 S. W. 481; Alcorn v. 
Chicago & Alton R. Co., 108 Mo. 
1, 16 S. W. 227. 



2100 Masteb and Sebyant. ^782 



substituted another machine made of brass and that 
they run this at a lower rate of speed. ''^ 

Rule applies to change of method. 

Evdence that a changed method of performing work 
was adopted after an accident is inadmissible,^'^ as is 
evidence that changes had been made in the guard of 
a machine,^'* or evidence as to a new method as to 
stopping a train at a certain station for orders. ^'^ 

So the fact that after an injury to an employee work- 
ing about a machine, removing shells therefrom while 
in motion, the master issued orders that the power should 
be turned ojff such machine while doing such work, is 
insufficient to establish negligence in not issuing such 
orders before.*'* 

Warning subsequently given. 

It was held an error to permit plaintiff to prove that, 
subsequent to an accident, defendant posted notices at 
its works warning all employees at work on its lines and 
circuits to quit work at four o'clock. It was said that 
the Uabilities of the defendant must be determined from 
what took place before and at the time of the accident; 
what it did afterwards, by way of precaution to avoid 
future accidents, should not be construed into an ad- 
mission by it of a previous neglect of duty.*'* 

Evidence admissible for certain purposes. 

Although such evidence is not admissible, except in 
Kansas and Pennsylvania, to show neghgence in main- 
taining the applianceis or place in unsafe condition, yet 
it has been held admissible, in a number of cases, for 
other purposes. For instance, where defendant has 

234. Lowe v. ElUott, 109 N. R. Co., 143 Mich. 125, 106 N. W. 
Car. 581, 14 S. B. 51. 715. 

235. Filter v. Iowa Tel Co., 238. Morris v. Winchester Re- 
129 la. 610, 106 N. W. 7. peating Arms Co., 73 Conn. 680, 

236. Lally v. Crookston Lbr. 49 Atl. 180. 

Co., 82 Minn. 407, 85 N. W. 151. 239. Colorado Electric Co. v. 

237. Moon v. Pere Marquette Lubbers, 11 Colo. 505, 19 Pao. 479» 

7 Am. St. Rep. 255. 



§783 



Admissibiuty of Evidence. 



2101 



shown that the appliance was in good condition some 
time after the accident, plaintiff may show that it had 
been repaired in the meantime. ^^ 

So the fact that a defective appliance was repaired 
after an accident may be shown upon the question of 
what was broken, and how, and what was wanting, 
athough improper for the purpose of showing the em- 
ployer was negligent in not making repairs and altera- 
tions before the accident. ^^^ 

Such evidence is also competent to show that the 
property where the servant was injured was owned by 
or was under the control of defendant.*** 

The contention being that a strict compliance with 
the statute requiring the blocking of frogs and guard- 
rails would endanger the operation of the trains, the 
fact that subsequent to the accident in question the 
company did block the particular guard rail, might be 
shown to negative the contention of the defendant.**' 

It was held by the Washington court, to show that 
a saw in a mill could have been advantageously guarded, 
evidence that changes were made on it, immediately 
after the accident, was comi)etent.*** 

It seems that the Kentucky court held that the fact 
that the end of a bolt which had become loosened from 
the nut which held it, was battered down, after the 
accident, could be proved to show that the defect might 
have been cured by due care.*** 

§ 783 • Expert and opinion evidence. 

It is deemed not necessary and not within the scope of 
this work to consider in detail the rules as to the admis- 



240. Virginia & N. C. Wheel 
Co. V. Chalkley, 98 Va. 62, 34 S. 
E. 976. 

241. Noma v. Atlas Steamship 
Co., 37 Fed. 426. 

242. Ferrari y. Beaver Hill 
Coal Co., 102 Pao. (Oreg.) 1016. 

243. Cincinnati H. & D. R. 
Co. y. Van Home, 69 Fed. 139. See 
also Qnlf , C. & S. F. R. Co. y. Dar- 



by, 28 Tex. Ciy. App. 413, 67 S. W. 
446. 

244. Thompson y. Issoquah 
Shingle Co., 43 Wash. 253, 86 Pao. 
588. See also Tonng y. Hahn 
(Tex. civ. App.), 69 S. W. 203. 

245. Champion loe Mfg. & 
Cold Storage Co. v. Carter, 21 Ey. 
L. Rep. 210, 51 S. W. 16. 



2102 Masteb and Sebvant. ^783 

sibility of opinion and expert evidence, which are appli- 
cable in all actions and which do not depend on the 
nature of the action. At the same time, it is proper 
that the application of a few of the rules should be stated 
in this coimection. Opinion evidence may be that of 
an expert or of a non-expert. In the one case the wit- 
ness states a conclusion from his knowledge of certain 
facts although he is not an expert. In the other case, 
the witness need have no knowledge of the facts in the 
case except as contained in a h3ii>otheticaI question, or 
from hearing the testimony in the case. 

An expert is one who by practice or observation has 
become experienced in any science, art or trade. ^^* 

It was said it is only when the fact to be established 
partakes so far of the nature of science as to require 
the course of previous habit or study to the attainment 
of the knowledge of it, that the opinion of experts can 
be received. If the relation of facts and their prob- 
able results can be determined without special skill or 
study, the facts themselves must generally be given in 
evidence and the conclusions or inferences must be 
drawn by the jury. The difference in proving what is 
the usual way of doing an act and proving that a par- 
ticular way is sufficient or the contrary, is apparent. ^^^ 

However, the scope of expert evidence is not restricted 
to the field of science, art or skill, technically speaking, 
but extends to every subject in respect to which one may 
derive by experience special and i)eculiar knowledge.*** 

Whether particular act or conduct was negligence. 

It is settled that whether any particular act of a 
plaintiff or defendant was negligence or whether due 
care required a particular thing to be done, are not 
matters of expert testimony. They are matters of 
judgment and common experience to be determined by 
jurors upon the facts and circumstances of the case. 

246. Turner v. Haar, 114 Mo. 248. Hamann v. Milwaukee 
335, 21 S. W. 737. Bridge Co., 127 Wis. 650, 106 N. 

247. Cahow v. Chicago, R. I. W. 1081. 
& P. R. Co., 113 la. 224. 



§783 



Admissibility of Evidence. 



2103 



Thus, where an expert was asked if particular acts 
stated were a sufficient precaution, in his experience 
in the particular mine.^^* 

The rule is based upon the ground that where the 
facts in a case can be placed before a jury, and they are 
of such a nature that jurors generally are as competent 
to form opinions in reference to them and draw infer- 
ences from them as witnesses, the opinion of experts 
cannot be received in evidence as to such facts. '^ 

Opinion evidence as to point jury are to decide. 

Opinion evidence proper to be given as to the very 
point the jury is to decide, is confined to cases where 
such point is clearly within the field of expert evidence, 
and the opinions offered are based on undisputed facts, 
or assumed facts warranted by the record. ^*^ 

Opinion evidence as to whether situation was per- 
ilous. 

The rule allowing opinion evidence as to whether a 
particular situation is perilous, does not extend beyond 
those situations where the jury, having all the facts 
presented to them as clearly as practicable, cannot form 
an opinion which is as reliable as that of an expert. ^^* 

Competency of expert. 

A witness cannot testify as an expert until he first 
qualifies himself as such.^^' 



249. Berquist v. Chandler Iron 
Ck>., 49 Minn. 611, 62 N. W. 136. 
See also Camp v. Hall, 39 Fla. 636, 
22 So. 792. 

250. Overby v. Railway Co., 
37 Va. 524, 16 S. £. 813. 

261. Hamann v. Milwaukee 
Bridge Co., 127 Wis. 560, 106 N. 
W. 1081. 

262. Hamann v. Milwaukee 
Bridge Co., 127 Wis. 650, 106 N. 
W. 1081. 

263. The opinion of an expert 
who neither Imows or oan know 



more about the subject matter than 
the jury, and who must draw his 
deductions from the facts already 
in possession of the jury, is not ad- 
missible. Lineoska v. Susquehanna 
Coal Co., 167 Pa. St. 153, 27 Atl. 
677. 

WlTNBSS FAMILIAB WITH WIRB 
CABLES AS TO THEIR SAFETY. A wit- 

ness familiar with wire cables from 
working about and with them for 
many years and who has repaired 
elevator cables, is competent to 
testify on the question of the safety 



2104 



Master and Sbbyant. 



^783 



Application of rales. 

It is improper to allow a witness to be asked if the 
appliance in question was a safe one, since that question 
is the one to be decided by the jury and not the subject 
of expert testimony. *•* 

It is not proper to admit the testimony of expert 
witnesses as to what appliances are safe or unsafe. The 
jury is the judge of the safety of the appliance actually 
used. The safety of other appliances is immaterial. ^^* 



of a partly worn cable, although he 
has not oonstraoted an elevator. 
Stomne v. Hanford Produce Co., 
108 la. 137, 78 N. W. 841. 

FiRBMAN AS TO NBCBSSITT OF 

8AFETT SWITCH. In an action 
against a railroad company to re- 
cover damages for negligence re- 
sulting in the death of a locomotive 
engineer in its employ, it was held 
a fireman was not a competent wit- 
ness to testify as an expert, as to the 
necessity of a safety switch at the 
place of injury. Ballard v. New 
York, etc., R. Co., 126 Pa. St. 141. 
Experienced bailboad men as 

TO BLOCKING OF SWITCHES. It is 

competent for railroad men to show 
their exi)erience as such, and to 
testify that switches were blocked 
before and after the accident in 
railroad yards, where they worked. 
Hamilton v. Rich Hill Min. Co., 
108 Mo. 364, 18 S. W. 977. 

EXPEBIENCED MECHANICS AB TO 
ADAPTATION OF AFPUANCB FOB ITS 

USE. One who is well acquainted 
with the use of a mechanical appli- 
ance and has had a large experience 
in using it, though not familiar 
with its construction, is competent 
to testify as to whether such appli- 
ance was reasonably adapted for 
the purpose for which it was used 
and also as to its condition at the 
time of the accident. Alabama, 



Connellsville C. & C. Co. v. Pitts, 
98 Ala. 285, 13 So. 135. 

EXPEBIENCED TRAINMEN AS TO 

METHODS. A trainman of experi- 
ence is competent to testify as to 
whose business it is to make up 
trains, and as to what conductors 
generally do when trains are turned 
over to them. Price v. Railroad 
Co., 38 S. Car. 199, 17 S. E. 732. 
And also as to the effect of a car 
heavily loaded or empty running 
over a switch improperly set. 
Louisville & N. R. Co. v. Mother- 
shed, 97 Ala 261, 12 So. 714. A 
conductor on defendant's road may 
testify as to how freight trains are 
made up on such road and when 
the duty of a yard master ceases 
and that of the conductor com- 
mences. Price V. Railroad Co., 
38 S. Car. 199, 17 S. E. 732. Also 
one who has been a conductor of 
an electric street car for two months 
is competent to testify within what 
distance such a car going at a spec- 
ified rate of speed can be stopped. 
Watson V. Railway Co., 53 Minn. 
561, 55 N. W. 742 

254. Walker v. Williamson, 250 
Mass. 514. 

255. Lemberg v. Glenwood Lbr. 
Co., 127 Cal. 598, 60 Pac. 176, 49 
L. R. A. 33; Hune v. Kile, 98 Fed. 
49. 



§783 



Admissibilitt of Evidenoe. 



2105 



Nor whether a platform was unsafe by reason of its 
being too narrow for a station agent in doing his work. ^^^ 

It was held, however, that an expert may state his 
opinion as to whether a pulley constructed like the one 
in question was safe or unsafe, for the purpose for which 
it was used."^ 

And also that an expert might testify whether a par- 
ticular device for operating a circular saw was reason- 
ably safe.*" 

An expert may be i)ermitted to express an opinion 
that an eye bolt was not sufficient to hold the strain to 
which it was subjected. Their testimony should be 
limited to descriptive facts from which the jury may 
draw the conclusion.*** 

Opinions of witnesses as to whether a stock car is a 
dangerous place for a person to ride is not admissible. *^ 

Opinions of machinists as to whether a shaft would 
be more dangerous if jagged and split at the end are 
not admissible. *^^ 

Opinions of experts as to whether a certain arrange- 
ment of machinery was dangerous, where the facts are 
such that the jury, after they are explained, are com- 
petent to form an opinion, are not admissible.*^* 

Nor as to whether it was not more dangerous to ride 
upon a cross beam in front of the engine than on top 
of the cars.*** 

Opinions as to whether or not the fencing of the track 
at the point in question, by patting in cattle guards 



256. Henion v. N. Y., N. H. & 
H. R. Co., 79 Fed. 903. 

257. Wabash Screen Door Co. 
V. Block, 126 Fed. 721. 

258. King v. King, 79 Kan. 
584, 100 Pao. 503. 

259. Dougherty v. MiDiken, 
163 N. Y. 527, 57 N. E. 757, 79 
Am. St. Rep. 608. 

260. LawBon v. Railway Co., 
64 Wis. 447, 24 N. W. 618. 



261. Eauffman v. Maier, 94 
Cal. 269, 29 Pao. 489, 18 L. R. A. 
124. 

262. Freeberg v. St. Paul Plow 
Works, 48 Minn. 99, 50 N. W. 
1026. See also Marks v. Harriett 
Cotton Mills, 135 N. C. 287, 47 S. 
E. 432. 

263. Warden v. Raikoad Co., 
97 Ala. 277, 10 So. 276, 14 L. R. 
A. 552. 



2106 



Mabteb and Sebvant. 



§783 



and using fences, would endanger the safety of defend- 
ant's employees, are not admissible.'*^ 

The opinion of a yard master that the method of 
coupling cars, adopted by a servant, was careless, dan- 
gerous and not the best way, is inadmissible.'*^ 

Experts cannot testify or give their opinion as to 
whether a scaffold was put up rightly. '•• 

Nor as to whether the manner in which a brake was 
inspected was suflBcient.'*^ 

Nor as to the skill possessed by an engineer.'*^ 

Nor as to whether a person could walk between an 
obstruction and a building with safety. '•• 

Nor as to whether a person could have heard the 
engine blowing off steam just before the accident when 
it does not appear that the witness was either in or near 
the place where such person was at the time.'^° 

Nor, where the witness is not an exi)ert, as to whether 
the train could have been stopped in time to have avoided 
the accident had it been run slower. *^^ 

Nor as to whether or not a railway company was 
ordinarily careful in keeping its tracks in good condi- 
tion."' 

Nor as to whether it was negligent for an employee 
of a railroad company to ride on the ladder of a car.'^' 

Nor as to whether, if an engineer had paid attention 
to signals and stopped his train, an employee would have 
been killed."* 



264. Toledo, St. L. & E. C. R. 
Co., 6 Ind. App. 647, 32 N. E. 793. 

265. Suae v. Railroad Co., 39 
Fed. 487. 

266. Maner v. Fersruson, ]7 N. 
Y. Supp. 349. 

267. Sohneider v. Railroad Co., 
133 N. Y 683, 30 N. E. 762. 

268. Butler v. Railroad Co., 87 
la. 213, 64 N. W. 211. 

269. Bnmker v. Cummins, 133 
Ind. 443, 32 N. E. 732. 

270. Chicago, M. & St. P. R. 



Co. V. 0*Sulliyan, 143 III. 48, 32 
N. W. 398. 

271. International & G. N. R. 
Co. V. Kuebn, 2 Tex. Civ. App. 
210, 21 S. W. 68. 

272. Ft. Worth & D. C. R. Co. 
V. Thompson, 2 Tex. Civ. App. 
170, 21 S. W. 137. 

273 Johnston v. Railway Co., 
23 Oreg. 94, 31 Pao. 283. 

274. Kendrick v. Railroad Co., 
89 Oa. 782, 16 8. E. 686. 



§783 



Admissibility of Evidence. 



2107 



Nor as to whether an engineer had time to signal the 
approach of the engine, and whether if he had done so, 
the deceased would have had time to get oflf the track. ^^* 

Nor as to whether an elevator bin was safe or imsaf e. *^* 

Nor as to whether a witness who heard no signal of 
an approaching train could have heard it had it been 
given. *^^ 

Nor on cross examination of the witness who has stated 
that he heard no signal, as to whether it might have 
been given and he not have heard it.*^* 

Nor as to whether a person was careless at the time 
of receiving his injury."* 

Nor as to whether the backing of the train causing 
injury was done carefully and without negligence.*** 

Nor as to whether, at the time of the accident, it 
occurred to the witness that the accident happened by 
reason of the darkness or by reason of plaintiff's in- 
attention to the step being there. '^^ 

Nor whether the manner in which a wheel in a tackle 
block was prpi)erly secured in the block in suitable 
repair."* 

Nor whether, in the opinion of an expert railroad 
man, an insi)ector would have discovered the defects, 
which consisted in the rottenness of the wood on a car 
at the place where a ladder was attached, if the car had 
been examined. *•• 

Nor as to whether the manner of moving a heavy 
machine was proper.*** 



275. Dowdy y. Railroad Co., 
88 Ga. 726, 16 S. £. 62. 

276. Davis v. Railroad Co., 
69 Hun 124, 23 N. T. Supp. 358. 

277. Eskridges Exrs. v. Rail- 
way Co., 89 Ky. 367, 12 8. W. 580. 

278. East Tenn., V. & G. R. 
Co. y. Watson, 90 Ala. 41, 7 So. 
813. 

279. MoCanigher v. Rogers, 
120 N. T. 526, 24 S. E. 812. 



280. Central R. & B. Co. v. 
Ryles, 84 Ga. 420, 11 8. W. 499. 

281. Eelley v. Railroad Co., 80 
Mich. 237, 45 N. W. 90. 

282. Houston v. Brush, 66 Vt. 
331, 29 Atl. 380. 

283. Allen v. Union Pao. R. Co., 
7 Utah, 239, 26 Pac. 297. 

284. Hamann v. Milwaukee 
Bridge Co., 127 Wis. 560, 106 N. 
W. 1081. 



2108 



Masteb and Sebvant. 



§783 



Nor whether an employee was '^a careful, prudent 
and cautious engineer. "*•• 

Nor by a fireman as to the necessity of a safety switch 
at the place of injury. *•• 

Nor, on cross examination, as to whether it is negli- 
gent for a i)erson who has business to attend to on 
a railroad track, to be standing on the rails immediately 
in front of a moving car.**^ 

Nor of the plaintiff when called as an expert witness 
in his own behalf to give an opinion upon the propriety 
of his conduct at the time of the injury. **• 

Nor as to what the employee's belief or understanding 
was as to the protection he could receive while perform- 
ing his duty."* 

Nor, as an expert, whether a proper inspection would 
have discovered an obvious defect in a car."*^ 

Nor a witness as to whether an employee injured was 
a careful or careless man in guarding himself and em- 
ployees from danger. ^•^ 

An exi)ert cannot testify from all the evidence given 
whether the plaintiff was suffering from the injury he 
complained of, prior to the accident upon which suit 
is brought, as this allows the witness to determine what 
facts are established by the testimony of others instead 
of giving only his opinion upon a state of facts assumed 
by the hypothetical question.*** 



285. Mosnat v. Chicago & N. 
W. R. Co., 114 la. 161, 86 N. W. 
297. 

286. Ballard v. New York, etc., 
R. Co., 126 Pa. St. 141. 

287. Hamilton v. Rich Hill 
Min. Co., 108 Mo. 364, 18 8. W. 
977. 

288. Hudson v. (Georgia Pac. 
R. Co., 85 Ga. 203, 11 S. E. 605; 
Mayfleld v. Savannah, G. & N. S. 
R. Co., 87 Ga. 374, 14 S. E. 459. 
See also Phifer v. Carolina Cent. 
R. Co., 122 N. C. 940, 29 S. B. 578. 



289. Howard v. Savannah, F. 
& W. R. Co., 84 Ga. 711, 11 S. E. 
452. 

290. Gutridge v. Mo. Pac. R. 
Co., 94 Mo. 468, 7 S. W. 476, 4 Am. 
St. Rep. 392; Allen v. Union Pac. 
R. Co., 7 Utah, 239, 26 Pac. 297. 

291. Elliot y. Chicago, M. & 
St. P. R. Co., 4 Dak. 523, 41 N. W. 
758, 3 L. R. A. 363. 

292. Gregory v. Railroad Co., 
55 Hun 303, 8 N. Y. 525. Cases 
may be found to the contrary. 



^ 783 APMISSTBHiTTY OP EviDENOB. 2109 



So neither plaintiflf,**' nor one not an expert,*** 
can testify as to whether plaintiff was in the exercise of 
due care at the time of the injury. 

But where it was claimed by defendant that its em- 
ployee was negligent in going under a certain gate in 
an elevator building, the plaintiff claiming his duties 
required his presence there, the opinions of experienced 
workmen as to whether, in the ordinary course of his 
duties, it was necessary and proper for him to go there, 
were competent.*** 

The best or safest method of loading car wheels upon 
a car is not a subject of expert testimony. It is a ques- 
tion which any person of common intelligence and ob- 
servation coidd as readily determine as the so called 
expert. *•• 

Testimony of a witness that a person by the exercise 
of ordinary care could detect missing shots, was held 
inadmissible. It was said a witness cannot be per- 
mitted to thus invade the province of the jury and give 
his opinions upon the precise question which the jury 
are to decide as the ultimate fact in the case.**^ 

On the other hand, it was held competent for de- 
fendant to ask a witness, who was on a hand car with 
deceased at the time the latter was injured by being run 
down by a train, and where the witness had testified to 
all the facts, whether the deceased had ample time to 
jump from iJie hand car before the collision.**^ 

And it was held not error to admit the testimony of 
an elevator builder that he would regard as unsafe an 
elevator, running with a five-eighths rope, used to tran&- 

2d3. City of Springfield v. Coe, 296. Southern R. Co. v. Mauzy, 

166 m. 22, 46 N. E. 709. 98 Va. 692, 37 S. E. 286. 

294. Broflh Electric light & 297. Holy Cross G. M. & M. 
Power Co., 103 Ga. 612, 30 8. E. Co. v. O'SulliYan, 27 Colo. 237, 60 
533. Pao. 670. 

295. Storrie v. Grand Trunk 298. Quinn v. New York, N. H. 
Elevator Co., 134 Mich. 297, 96 & H. R. Co., 56 Conn. 44, 12 Atl. 
N. W. 569. 97. 



2110 Master and Servant. §783 

port iron weighing a ton, and passengers also, without 
a safety rope and other safety appliances.^ 

The testimony of witnesses who were experienced in 
the particular work, that in their opinion it was abso- 
lutely necessary for the plaintiff to assume the position 
he did in order to do the work, and that he had neither 
the size nor the strength to do it otherwise, was held to 
have been properly admitted. It was said it was not 
mere opinion, but a statement of knowledge of what had 
to be done.*^ 

It was held that an expert might properly testify 
that a dump car might be in perfectly good order and 
still fly back by reason of the fault of those who dumped 
it; that he had seen it done. The latter statement 
served to show more clearly the value and weight of 
his opinion.*®* 

It was held that a non-expert witness, after narrating 
the facts, might state his opinion upon such facts as to 
the health and mental condition of an employee who 
had sustained an injury."* 

It was held that a brakeman who has for five years 
observed the make up of freight trains in a depot yard 
was a competent witness as to the respective duties of 
the conductor of the train, and other servants of the 
company, in making up the train and moving it off.*®* 

A witness having sufficient knowledge may testify 
as to the general practice of railroads in coupling cars, 
and the comparative safety of different methods, but it 
is not competent to show that the different method of 
another road is better than that of defendant. It is 
supposed that in such matters even the skilful and ex- 
perienced will frequently differ in the choice of instru- 

* 

299. Bier y. Standard Mfg. Co., E. 87. See also Commonwealth 
130 Pa. St. 446, 18 Atl. 637. v. Leaob, 156 Mass. 99. 

300. Eehler v. Sohwenok, 151 302. Prioe v. Riohmond, etc.. 
Pa. St. 505, 25 Atl. 130, 31 Am. St. R. Co., 38 S. C. 199, 17 S. B. 732. 
Rep. 777. 303. Prioe v. Richmond, etc., 

301. Donahue v. New York, R. Co.. 38 S. C. 199, 17 S. B. 732. 
etc., R. Co., 159 Maps. 125, 34 N. 



§ 783 Admissibility of Evidbnoe. 2111 

mentalities. A party should not be judged negligent 
for not conforming to some other method believed by 
some to be less perilous. "^^ 

It was held proper to permit a witness having experi- 
ence to testify as to the dangers that were incident to 
the use of a machine, what precautions were necessary 
to avoid them, that the men usually employed about 
them were adults, and that before being set to work 
such men were carefully instructed in their use, where 
the fact was that an inexperienced lad was set to work 
upon such a machine.'^* 

It was held error to refuse to permit an expert witness 
to give his opinion and reasons therefor as to the merits 
of whipping straps as signals to brakeman, and to state 
whether or not they were generally used on roads re- 
garded as well managed. It was proper to exclude his 
opinions as to whether the defendant's road, or a section 
thereof, was prudently managed.*^* 

Where there was evidence that an elevator had been 
put up by inexperienced and incompetent hands, that 
it had no safety rope or appliance, and that it had been 
repaired by defendant's employees, it was held that it 
was competent for plaintiff to introduce the testimony 
of an experienced elevator builder to show that the 
elevator without safety appliances was unsafe, and that 
an ordinary carpenter or machinist without any special 
knowledge of elevators would not be a fit person to 
construct, repair or put up an elevator. "^^ 

A witness shown to have the requisite skiU and who 
has made a personal examination of the place in question, 
where injury was received, may, after describing it, give 
his opinion as to its dangerous character. *^^ 

304. Propst y. Georgia Paoifio Hall, 87 Ala. 708, 6 So. 277, 13 Am. 
R. Co., 83 Ala. 518, 3 So. 764; St. Rep. 84, 4 L. R. A. 710. 
Georgia Padfio R. Co. v. Propst, 307. Bier v. Standard Mfg. Co., 
83 AJa. 518, 3 So. 764. 130 Pa. St. 446, 18 Atl. 638. 

305. New York Bisouit Co. v. 308. McNemey y. Reading 
Rou88, 74 Fed. 608. City, 150 Pa. St. 611, 25 Atl. 57. 

306. Louisville & N. R. Co. y. 
S M. ft S.- 



2112 Masteb and Sebvant. §784 

An expert in dumpii^ cars may testify that the acci- 
dent coidd have happened otherwise than by reason of. 
a defect in the car, and that he had seen a car in good 
order fly back through the fault of those diunping it.^ 

Where it is impracticable to lay before the jury all 
the details bearing on the distance a horse car can be 
seen along a railroad track, the opinions of witnesses 
may be received.'" 

A competent witness may testify as to the difference 
in danger between using an ordinary road engine as a 
yard engine, with or without a flat car attached to it.'^^ 

It is proper for an expert to describe the different 
ways that a device can be secured so as to be safe.'^^ 

The opinion of a competent exx>ert based upon the 
facts and the whole situation, that the method of con- 
structing a cut for the purpose of underpinning or sup- 
porting a massive chimney stack, was proper, as well 
as his opinion as to the proper method which shoidd 
have been adopted so as to render it safe for the i>ersons 
working thereon, is admissible.'^' 

It is proper to inquire whether a defect in an unsound 
rope could have been discovered by the use of ordinary 
diligence and hence the question how it can be deter- 
mined whether a rope has become rotten or unsound, is 
proper.'^* 

§ 784. Speed of trains. 

Questions touching the rate of speed of a moving 
train are not properly scientiflc inquiries, and are not 
beyond the competency of ordinary witnesses who had 
means and habits of observation; yet the well known 
liability of all common observers to be deceived as to 
the rate of si)eed of heavy trains, renders it necessary to 

309. Donahue v. Railroad Co., 312. Sawyer v. J. M. Arnold 
159 Mass. 125, 34 N. E. 87. Shoe Co., 90 Me. 369, 38 AU. 332. 

310. East Tenn., V. & G. R. 313. Finn v. Caaaidy, 165 N. 
O). V. Watson, 90 Ala. 41, 7 So. T. 584, 59 N. E. 311, 53 L. R. A. 
«13. 877. 

311. Mobile & &. R. Co. ▼. 314. Silveria v. Iversen, 128 
George, 94 AJa. 199, 10 So. 145. Cal. 187. 



^784 Admissibility of Evidenob. 2113 

goard, as far as possible, against vague testimony which 
cannot be directly met or corroborated by proof of per- 
sons having actual knowledge upon the subject. Testi- 
mony of actual speed is tangible, whatever may be the 
value of the opinions of particular observers; but opin- 
ions on relative speed, without some standard of rapid- 
ity are of no value by themselves. Opinions of persons 
riding on the cars and not observing from the outside, 
may be received imder some circumstances, but they 
should be excluded unless the witnesses first show such 
extended experience and observation as to qualify them 
for forming such opinions as would be reliable. It is 
not prestmied that ordinary railway travelers usually 
form such habits.'" 

The opinions of observers, to amoimt to anything 
more than a mere scintilla of evidence, must be based 
ui>on attention to the moving train at the time, with 
reference to its rate of speed, and ordinarily that they 
watched the train as it progressed, with reference to 
the time occupied between objects, the distance between 
which could be ascertained. Testimony of ordinary 
observers as to such rate of speed, while it may tend to 
show that the train was moving fast, as distinguished 
from a slowly moving train, would be most unreliable 
and imsatisfactory, and especially where their attention 
is not called to the subject at the time, and their opinions 
are based upon a vague recollection or an impression, 
which they seek to recall months afterwards.'" 

The Iowa court, and some others, have gone to great 
length in admitting opinions of mere casual observers, 
and justify it upon the groimd that the jury is to judge 
of the weight of the evidence and it ought not to be 
presumed that they will attach more importance to 
such opinions than good judgment will approve. 

It would seem the better rule would be for the court 
to determine, in the first instance, whether the observer's 

316. Grand Rapids & I. R. Co. 316. Muster v. Railway Co., 
y. Huntley, 38 Mioh. 537, 31 Am. 61 Wis. 332, 21 N. W. 223. 
Rep. 321. 



2114 Masteb akd Sebvant. ^784 

experience and the attention paid to the train at the 
time, and the conditions existing from which he could 
form an intelligent and reasonably accurate judgment, 
were such as to entitle the opinion of the witness to 
legal weight with the jury, to be considered by them. 
This is the rule as to experts ordinarily and no good 
reason can be urged for a departure in cases of non- 
experts. It does not infringe upon the province of the 
jury to determine the weight of testimony, but simply 
determines the competency of a witness to give any tes- 
timony or whether his opinions are competent evidence. 
These are ordinarily, in other matters, purely questions 
for the court. The qualification of an expert is a ques- 
tion of fact to be decided by the court. To permit 
casual observers to give an opinion in such cases, is 
trifling with law and justice. It amoimts to nothing 
more than an unreliable guess. The writer has observed 
an array of witnesses testifying to a rate of speed, stating 
it to be thirty miles an hour, when the grade, weight of 
train and capacity of the engine were such that a rate 
of speed in excess of twelve miles an hour was a prac- 
tical impossibility, and when at the same time small 
boys were getting on and off the train, with the utmost 
faciUty. A witness who has often observed bodies in 
motion and has seen horses trot and run, it was held, 
was not competent to express an opinion as to the rate 
of speed of a hand car seen by him immediately before 
it struck a vehicle upon a crossing.'" 

It was held proper to permit a witness who had lived 
near the scene of an accident, and had seen many trains 
pass, to give his opinion as to how many miles an hour 
a train was running, though it appeared he did not know 
how many feet or rods there were in a mile.'" 

317. Mott y. Detroit, G. H. & facts should be consulted. If given 
M. R. Co., 120 Mich. 127, 79 N. full import, it is inconsistent with 
W. 3. the prior doctrine of this court, so 

318. Ward v. Railway Co., 85 well expressed in Muster y. Rail- 
Wis. 601, 55 N. W. 771. This way Co., 61 Wis. 332, 21 N. W. 
ruling is exceptional and to under- 223. 

stand its full import the particular 



§785 



Admissibility of Evidence. 



2115 



Testunony of a witness that a tram was coming too 
fast and was the sole cause of the accident was held 
admissible.'^' 

Evidence is properly admitted that fast mail trains 
can run at a rate of sixty miles an hour safely on a 
well ballasted track. '^ 

The testimony of a witness as to the speed of trains 
was held competent where it appeared that he was a 
resident of the locality, was familiar with the ruiming 
of trains, and had an opinion as to the speed of those in 
question.'*^ 

Where excessive speed of the train is alleged as the 
proximate cause of injury, testimony as to the rate of 
speed at a place one and one-half miles distant from 
where the accident occurred was held admissible.*** 

§ 785. ModelSi plats and diagrams. 

A plan or picture, whether made by the hand of man 
or by photography, is admissible in evidence, if verified 
by proof that it is a true representation of the subject. •*• 

Such testimony is admissible to assist in understand- 
ing the exact condition of the place of accident and the 
manner in which the plaintiff was injured. >'« 



319. G^rgia Railway Co. v. 
BryaiiB, 77 Ga. 429. 

320. Ft. W. & D. C. R. Co. v. 
Thompson, 2 Tex. Civ. App. 170, 
21 S. W. 137. 

321. Pence v. C, R. I. & P. R. 
Co., 79 la. 389, 44 N. W. 686. 

322. It is not proper for the 
oourt to instniet the jury, under 
the evidenoe, as a matter of law, 
that twenty miles or forty miles, or 
forty-five miles, pear hour, is negli- 
gence. It is a question of fact, 
properly left to the jury, in view of 
all the evidence as to the grade and 
reverse curves to determine whether 
the rate of speed at the time was 



negligence. Louisville & N. R. 
Co. V. Woods, 106 Ala. 661, 17 
So. 41. 

323. Macy v. Barnes, 16 Gray 
161; HoUenback v. Rowley, 8 Al- 
len, 473; Ruloff v. People, 46 N. 
T. 213; Underzook v. Common- 
wealth, 76 Pa. St. 340; Church v. 
Milwaukee, 31 Wis. 612; Dyson v. 
N. Y. & N. B. R. Co., 67 Conn. 9. 

324. In this case the guard rail, 
the cause of the injury, was not 
shown in the photograph, having 
been removed. Wimber v. Iowa 
Centrtd R. Co., 114 la. 661, 87 N. 
W. 606. 



2116 Masteb and Servant. ^785 



Photographs, to be admissible in evidence, should be 
such as were taken immediately after the accident, and 
while conditions remained the same. If conditions have 
changed, then they may be admissible as to that part 
where the conditions have not been changed, in con- 
nection with other evidence showing the actual con- 
dition at the time of the accident. '^^ 

To be admissible, however, a diagram, drawing or 
photograph must be verified by proof that it is a true 
representation and whether it is sufficiently verified is 
a preliminary question of fact to be determined by the 
judge presiding at the trial. •*• 

A model or diagram may be made by a party to a 
suit to illustrate any article of machinery involved in 
the issue on trial, witiiout notice to the opposite party. '^^ 

And the general rule is that photographs stand on the 
same footing as a diagram or model. '^' 

Where a model was used by a witness to illustrate how 
a scaffold was constructed, and there was testimony to 
the effect that it was a correct model, but this was dis- 
puted, and though not formally introduced in evidence 
the jury were allowed to take it to their room, it was 
said: The model became a necessary part of the tes- 
timony of the witness, to go to the jury as such. It 
was not used as independent testimony of the witness. 
It would be Uke a pencil drawing, made by the witness 
on the stand and in the presence of the jury, to illustrate 
and explain his oral evidence. The use of the model in 
this way was proper.'^ ! 

325. Baoh v. Iowa Cent. R. Co., Mass. 98; Turner v. Boston & M. 

112 la. 241; Lake Erie & W. R. R. Co., 158 Mass. 261, 33 N. £. | 

Co. V. Wilson, 189 Dl. 89, 59 N. 620. 

E. 572; Moon v. State, 68 Ga. 327. Aufirusta & 8. R. Co. v. 

688; Locke, S. C. & P. R. Co., 46 Dorsey, 68 Ga. 688. 

la. 109. 328. Lake Erie & W. R. Co. v. 

326. Blair v. Pelham, 118 Mass. Wilson, 189 Dl. 89, 59 N. E. 572. 

420; Commonwealth v. Coe, 115 329. Blawnski v. Perkins, 77 | 

Mass. 481; Walker v. Curtis, 116 Wis. 9, 45 N. V. 947. 



§^ 786-788 Admissibilitt op Evidbncb. 



2117 



§ 786. Instruction and warning. 

Evidence that employees other than the injured one 
had been instructed or warned is not admissible, »»« nor 
is the testimony that they had not been warned."^ 

§ 787. Injury to witness at same time and place. 

Evidence of a witness that he was injured at the same 
time and place plaintiff was injured, is admissible. ''' 

But evidence of a witness injured at the same time 
and place that plaintiff was, that defendant had settied 
for his injury, is not admissible. ''' 

§ 788. Existence of insurance. 

The existence of accident insurance carried by the 
master to protect himself from loss from liability for 
injuries to his employees is not admissible in evidence."^ 

Furthermore, in some of the states, especially in New 
York, the appellate courts do not hesitate to reverse a 
judgment for plaintiff in case the jury are informed of 
the existence of such insurance either by the admission 
of evidence, offer of proqf, or argument of counsel. ••* 



330. Verdelli v. Gray's Harbor 
Com. Co^ 115 CaL 517, 47 Pae. 
364; Oiant v. Vamey, 21 Colo. 
329,40Pao.771; Elaffke v. Betten- 
dorf Axle Co., 125 la. 223, 100 N. 
W. 1116. 

331. Chicago & N. W. R. Co. 
y.Moraiida, 108 111.576. Where the 
failure to give warning to an infant 
servant is alleged, evidence of other 
employees that th^ never heard 
the master or his representative 
warn any one as to the danger is 
not admissible. Virginia Iron, C. 
ft C. Co. V. Tomlinson, 104 Va. 249, 
51 8. £. 362. 

332. Missouri, K. & T. R. Co. 
V. Smith, 101 S. W. (Tex. Civ. App.) 
453. 

333. Missouri, E. & T. R. Co. v. 
Smith, 101 S. W. (Tex. Qv. App.) 
453. 



334. Roche v. Llewellyn Iron 
Works Co., 140 Cal. 563, 74 Pao. 
147; Iverson v. McDonnell, 36 
Wash. 73, 78 Pao. 202; Anderson 
V. Duckworth, 162 Mass. 251, 38 
N. E. 510; Herrin v. Daly, 80 Miss. 
340, 31 So. 790. 

335. Evidence that the defend- 
ant in an action for negligence was 
insured in a casualty company, or 
that the defense was conducted by 
an insurance company, is incompe- 
tent and so dangerous as to require 
a reversal even when the dourt 
strikes it from the record and di- 
rects the jury to disregard it, unless 
it clearly appears that it could not 
have influenced the verdict. Cos- 
sehnon v. Dunfee, 172 N. T. 507, 
65 N. E. 494; Loughlin v. BrassU, 
187 N. Y. 128, 135, 79 N. E. 854; 
Hordem v. Salvation Army, 124 



2118 



Master and Sbbvant. 



§789 



§ 789. Carlisle and other mortuary tables. 

There bemg evidence that an injury is i)ermanent, 
life expectancy tables may properly be admitted in 
evidence."* 

As contained in the EncyclopcEdia Brittanica, they 
are admissible without preliminary proof; and the same 
is true as to American experience tables as shown to be in 
general use by insurance men."^ 

Such tables, to be admissible, need not show the ex- 
pectancy at the precise age of decedent. It is sufficient 
if they show the exi>ectancy of persons approximately 
of that age.'" 

Where it appears that a plaintiff was a healthy, strong 
man, and his age, occupation and earning power also 
appears, it is competent to show the expectation of life 
of such a man according to the CarUsle tables of mor- 
tality. The value of such tables when applied to a 
particidar case will depend very much upon conditions. 



App. Div. 674, 676. 109 N. Y. 
Supp. 131 ; Haigh v. Edehneyer & 
M. H. Elevator Ck>., 123 App. Div. 
376, 380. 107 N. Y. Supp. 936; 
Maoigold v. Blaok River Traction 
Co., 81 App. Div. 381, 384, 80 N. 
Y. Supp. 861. In Hordem v. Sal- 
vation Army, supra, Mr. Justioe 
Ingraham said: "The question as 
to whether or not under any dr- 
oumstanoes evidence of this kind 
is competent has been so often be- 
fore the court and so uniformly 
decided that there can be now no 
question that under no circum- 
stances is it proper to ask such a 
question. The only possible ground 
of asking the question is to suggest 
to the jury that, as the defendant 
would sustain no damage by a ver- 
dict against it, they should give to 
the injured plaintiff compensation 
to which under other droumstances 
he would not be entitled. • • . 



As counsel in cases of this kind 
have been so often admonished as 
to the impropriety of suggesting 
either by way of argument or by 
way of questions to the jury, or in 
any other way, that the defendant 
was protected by insurance, it 
seems to be unnecessary to say 
more than that such a suggestion 
in the presence of the jury will ren- 
der any verdict that has been ob- 
tained by the plaintiff valueless, 
as a violation of the rule will require 
a reversal of the judgment." 

336. Stomme v. Hanford Pro- 
duce Co.. 108 la. 137, 78 N. W. 
841. 

337. Pearl v. Omaha & St. Louis 
R. Co., 116 la. 635, 88 N. W. 1078; 
Worden v. Hmneston & S. R. Co., 
76 la. 310, 41 N. W. 26. 

338. Pearl v. Omaha & St. Louis 
R. Co., 116 la. 636. 88 N. W. 1078. 



§ 790 Admissibility op Evidbnob, 2119 

such as state of health, habits of life, social conditions, 
etc., and the attention of the juries should be called 
pointedly to these qualifying circumstances. ''' 

It is proper to permit a witness to testify that he is 
acquainted with tables used by life insurance companies 
in estimating the probable duration of life at any given 
age, and that the American table of mortality is used 
for that purpose by nearly all the companies in the 
United States, and in such case it is proper to admit 
such tables in evidence. They are not conclusive upon 
the question of the duration of life. The physical con- 
dition of the injured person at the time next precediog 
the injury, his general health, his avocation in life with 
resi)ect to danger, his habits, and probably other facts, 
properly enter into the question.'**^ 

It was held that the testimony of an actuary as to the 
probability of the duration of life of a healthy man of 
a certain age, and the value of an annuity for the life of 
such person, calculated upon the basis that he earned 
a certain stated stmi of money per annum, is not admis- 
sible where the injury is only partial. The rule seems to 
be that where death results from the injury, or where 
the evidence tends to show that the earning capacity 
of the i>arty is entirely destroyed, such testimony is 
admissible, but otherwise not.'^^ 

§ 790. Evidence as to contributory negligence. 

Where contributory negligence is relied on as a defense, 
it is, as aheady stated, ordinarily an affirmative defense 
to be proved by defendant. On the other hand, evi- 
dence is admissible on behalf of plaintiff to show that he 
was not negligent, such as evidence as to the orders of 
the master, assurances of safety, promise to repair, etc. 

If the employee is killed in the accident, and no one 
witnessed it, evidence as to the health, habits, sobriety 

330. Steinbnmner v. Pittsburg, 340. Mary Lee Coal & R. Co. v. 

ete., R. Co., 146 Pa. St. 504. See Chambliss, 07 Ala. 171, 11 So. 807. 

also, Sauter v. N. Y. C. & H. R. R. 341. Texas Mexican R. Co. v. 

Co.. 66 N. Y. 60. Douglas, 60 Tex. 604, 7 S. W. 77. 



2120 



Masteb akd Sebvant. 



§790 



and prudence of the deceased is admissible in his be- 
half. »" 

Evidence of the carelessness of the injured servant 
on other occasions is ordinarily not admissible, •*• nor 
is the evidence that he had frequently been discharged 
by other railroad companies.'** 

If defendant reUes on the servant's disobedience of 
a written rule, he shoidd introduce such written or 
printed rule in evidence,'** subject to the rules relating 
to secondary evidence, and such evidence need not be 
preceded by evidence that plaintiff had knowledge of 
such rules. •*• 

After proof of the existence of the rule, plaintiff may 
show that the rule was not a binding one because not 
promulgated or for any other reason, or may show 
habitual violation thereof.'*^ 

It has also been held that evidence was admissible, as 
tending to show that the injury to the employee was not 
brought about by his own negligence, that another em- 
ployee working by the side of the one injured, who was 
run over by a switch engine, came so near being run 
over that the engine struck his foot.'*' 



342. Illinois Cent. R. Co. v. 
Priokett, 210 HI. 140, 71 N. E. 435; 
Chicago, R. I. & P. R. Co. v. Clark, 
108 m. 113; Overman Wheel Co. 
v. Griffin, 67 Fed. 659. But see 
Erb Y. Popritz, 59 Kan. 264, 52 
Pao. 871, 68 Am. St. Rep. 362. 
Otherwise where there are wit- 
nesses to facts attending the acci- 
dent. Adams v. Chicago, M. & 
St. P. R. Co., 93 la, 565, 61 N. 
W. 1059. 

343. Mansfield Coal & Coke 
Co. V. McEnery, 91 Pa. St. 185, 36 
Am. Rep. 662; Missouri, E. & T. 
R. Co. v. Johnson, 92 Tex. 380, 48 
S. W. 568. 

344. Wimber v. Iowa Cent. R. 
Co., 114 la. 551, 87 N. W. 505. 



345. Memphis & C. R. Co. v. 
Askew, 90 Ala. 5, 7 So. 823, holding 
that all of printed rules should not 
be introduced. 

346. Parker v. Georgia Pao. R. 
Co., 83 Ga. 539, 10 S. E. 233; In- 
diana, I. & I. R. Co. V, Bundy, 152 
Ind. 590, 53 N. E. 175. 

347. Lake Erie & W. R. Co. v. 
Craig, 80 Fed. 488. 

348. Missouri Pac. R. Co. v. 
Lehmbery, 75 Tex. 61, 12 S. W/ 
838. It would seem, however, that 
this case goes to the limit. Such 
question would necessarily present 
the collateral issue of the contrib- 
utory negligence of such other 
workman. 



§§ 791, 792 Admissibility of Evidbncb. 2121 

The rules as to when evidence of custom is admissible 
have already been referred to,'*" as have the rules relat- 
ing to expert and opinion evidence as to contributory 
negligence. •" 

§ 791. Evidence as to communications with deceased 
where employee or opposing party dead. 

The statutes existing in most of the states, excluding 
testimony of a party as to statements of or transactions 
or commimications with persons since deceased, apply 
to actions by a servant against a master for personal 
injuries. 

Thus, imder the Michigan statute which precludes 
the giving of testimony by such agents as are authorized 
to act for the principal in the matter with reference to 
which testimony is given, as to facts and circumstances 
equally within the knowledge of the deceased, it was 
held that the superintendent of a factory could not tes- 
tify, in an action brought by the representatives of a 
deceased employee for wrongful act causing his death, 
as to warnings and directions given by him to such 
employee, but coidd testify as to the circumstances at- 
tending his death of which he was a passive spectator. '^^ 

§ 792. Evidence as corresponding with pleading. 

It is well settied that if a particular act or acts of 
negligence are alleged in the complaint, plaintiff must 
prove one of such acts and cannot recover by proving 
some other act of negligence. '^^ 

For instance, if the complaint sets forth as the negli- 
gence relied on the acts of a superior servant, evidence 
is not admissible to show a defect in the machinery.'^' 

349. See supra, § 775. & P. R. Co., 100 Mo. App. 617, 75 

350. See supra, § 783. 8. W. 193. See also infra, chapter 

351. Storrie v. Grand Trunk on pleading. 

Elevator Co., 134 Mich. 297, 96 353. Davis v. Komman, 141 
N. W. 569. Ala. 479, 37 So. 789. 

352. Garven v. Chicago, R. I. 



2122 Masteb and Sebvant. §792 

So where the failure to supply a street car with speci- 
fied articles is alleged, evidence as to failure to supply it 
with other articles is immaterial."* 

So under a declaration alleging as the cause of injury, the 
faUure of instruction and warning, but not aUeging a 
want of repair of the machine or appliance, evidence that 
the dangerous character of such machine or appliance 
was a result of a want of repair, and that his injuries 
were attributable to such defect, is inadmissible.'^* 

So if incompetency of the alleged neghgent servant 
is not pleaded, evidence in regard thereto is inadmis- 
sible. «• 

354. Mayer v. Detroit, A. A. R. Co., 138 Mich. 443, 101 N. W. 
& J. R. Co., 142 Mioh. 459, 105 N. 663; Telle v. Leavenworth Rapid 
W. 888. Transit Co., 50 Kan. 455, 31 Pao. 

355. ChaU v. Detroit Stove 1076. 

Co., 140 Mich. 68, 103 N. W. 513; 356. City of Greeley v. Foster, 
Culver V. South Haven & Eastern 32 Colo. 202, 75 Pao. 351. 



Chabaotbb and Supfioibnoy of Evidbncb. 2123 



CHAPTER IV. 



CHARACTER AND SUFFICIENCT OF BVIDENCB. 



See. 

793. Sointilla of evidence. 

794. Positiye and negative proof. 

Rule applied to order given. 

Rule applied where injured 
penon testified she looked 
and listened but did not 
hear. 

Rule applied where section 
man injured. 

Rule applied where engi- 
neer on rear engine of 
double header injured. 

In Kansas rule qualified. 

Rule not approved by Iowa 
and Missouri courts. 

Rule founded upon common 
knowledge and experi- 
ence. 

Rule applied as to cause of 
an accident. 

795. Sufficiency of evidence to show 

negligence. 

Two or more causes which 
might have produced the 
injury. 

Balancing the probabilities. 

Merely proving a condition 
which might have pro- 
duced an injury presents 
no issue. 

Something more than a 
probability must be 
shown. 

Presumption in case of 
death that employee was 
in exercise of due care as 
showing negligence on 
part of master. 

Proof beyond a reasonable 
doubt. 

Application of rules. 



Sec. 

Sufficiency of proof as to 
cause 0^ death. 

796. Sufficiency of evidence to 

show want of contributory 
negligence. 

797. Res ipsa loquitur. 

Essential to application of 
doctrine that accident 
does not ordinarily occur 
if due care has been exer* 
dsed. 

Where unusual and unex- 
pected accident happens. 

Rule held nbt applicable to 
complicated machinery. 

Rule as applicable only 
where no positive proof 
exists. 

Reason for rule. 

Rule as applicable to mas- 
ter and servant. 

Statutory provisions. 

What must be proved. 

Evidence to rebut presump- 
tion. 

Automatic starting of ma- 
chine. 

Collision between trains. 

Derailment of engine or 
train. 

Injuries caused by falls or 
breaks. 

Explosions. 

Trains breaking apart. 

Wreck of train. 

Cave in. 

Box on hand car striking 
platform. 

Shock received by operator 
of telephone exchange. 



2124 Mastbb and SEBVAnrr. §793 



§ 793. Scintilla of evidence. 

It was said the day is past for aUowlAg or sustaining 
verdicts upon a mere scintilla. '^^ 

The burden lies upon the plaintiff to prove the negli- 
gence which he alleges; and while it is true that this may 
be done by proof of facts from which it may reasonably 
be inferred that the defendant's negligence caused the 
injury complained of, it is equally true that a mere 
scintilla of evidence is not sufficient. It must be evi- 
dence having legal weight and upon which the verdict 
of a jury would be allowed to stand.*** 

The judges are no longer required to submit a case 
to the jury because some evidence has been introduced 
by the party bearing the burden of proof, unless the evi- 
dence be of such a character that it would warrant the 
jury in proceeding to find a verdict in favor of the party 
introducing such evidence. Decided cases may be found 
where it is held, if there is a scintilla of evidence in sujh 
port of a case, the judge is bound to leave it to the jury; 
but the modem decisions have established a more rea- 
sonable rule, to-wit, that before the evidence is left to 
the jury there is or may be in every case a preliminary 
question for the judge, not whether there is literally no 
evidence, but whether there is any upon which a jury 
could properly proceed to find a verdict for the party 
producing it, upon whom the burden of proof is im- 
posed. **• 

The rule in West Virginia is that where the evidence 
is so slight, a mere scintilla, that the court should set 
aside an adverse verdict, it should direct a verdict. '~ 

357. Westerberg v. KinzuA 360. An elaborate review of the 
Creek A K. R. R. Co., 142 Pa. St. oases in this country upon the ques- 
471, 21 Atl. 878. tion appears in Eetterman v. Dry 

358. Nason v. West, 78 Me. Fork R. Co., 48 W. Va. 606, 37 S. 
253, 3 Atl. 911. E. 683. 

359. Commonwealth v. Clark, 
94 U. 8. 278. 



^ 794 Chabacteb akd Sufficiency of Evidence. 2125 

§ 794. Positive and negative proof. 

Affirmatiye proof must be positive in character as 
distinguished from such as may be purely negative. 
Care must be taken to properly distinguish between proof 
of a n^ative and negative proof. The evidence to 
substantiate the former must be positive in character. 
A very frequent illustration of the rule arisen when it 
is sought to establish that signals were not given of the 
approach of a train at a highway crossing. This fact 
must be affirmatively proven where relied upon as a 
cause for recovery. In general it is sought to be proven 
and established by persons who, having an opportimity 
to hear the signals, testify either that they did not hear 
or do not remember that they heard them. In some 
cases a distinction has been made, from the language 
used by witnesses, as to whether they state they did not 
hear or that they do not remember hearing such signals; 
in the former case, holding that such evidence has an 
element of a positive character while in the latter it is 
purely n^ative. But this is too much like a distinction 
without a di£Ference, a mere play upon words, and the 
real questions after all are opportunity for hearing and 
such attendant circumstances and conditions as woidd 
ordinarily and naturally impress the fact of signals not 
having been given upon the mind of the witness, to 
such an extent that such impression woidd remain with 
him at the time he is called upon to testify as to the 
fact. In a well considered case, in which the question 
was determined, wherein the rule was fully and ably 
expressed and the reasoning of the court conclusive, the 
facts were that the plainti£f and several witnesses tes- 
tified that they did not remember to have heard the en- 
gine bell ring before the plaintiff was injured, not to have 
seen any person or light on the forward end of the car. 
The conductor, engineer, foreman and the brakeman 
who held the lantern, each testified that the lantern 
was so held by the brakeman and three of them testified 
that the signal was given. The court say: ''The testi- 
mony of the plaintiff's witnesses that they did not hear 



2126 Mastbb and Servant. $794 



the bell ring or did not see the lighted lantern at the 
head of the gravel cars, is purely negative, and its neg- 
ative character is intensified by the fact which is made 
perfectly obvious by their testimony, that they did not 
look attentively, but only casually, at the approaching 
train, and the attention of none of them was directed 
to the presence or absence of such warnings. Upon this 
record the credibility of the defendant's witnesses, who 
testified positively to the ringing of the bell, and the 
presence of the brakeman upon the gravel car with a 
lighted lantern, stands unimpeached. The jury are not 
at liberty to disregard their testimony, but it was their 
duty to reconcile the testimony of all the witnesses, if 
that could reasonably be done. There is no difficulty 
in doing so in this case. The testimony of defendant's 
witnesses is positive that the bell was seasonably rung 
and that the brakeman stood on the forward end of 
the leading gravel car holding a lighted lantern, and 
that of the plaintiff's witnesses is that although they 
had the opportunity to hear and see such warnings, they 
failed to do so. The testimony does not tend to show 
a single fact or circumstance which gives a positive char- 
acter to the testimony of the plaintiff and his witnesses. 
Such being the nature of the testimony the fact that 
the warnings were given, was established, if not by the 
undisputed evidence, certainly by an overwhelming pre- 
ponderance of testimony, and the jury were not justified 
in finding they were not given. Indeed, the negative 
testimony of plaintiff and his witnesses, while it has 
some bearing upon the question of the warnings, amounts 
to little more than, so to speak, a mere scintilla of evi- 
dence, and did not justify the jury in their disregard 
of all the positive and otherwise unimpeached testimony 
that the warnings were given." '•^ 

361. Bohan v. Railway Co., 61 witness that he did not hear the 

Wis. 391, 21 N. W. 241. Substan- signals is of itself, as against posi- 

tially the same reasoning was set tive and direct testimony that they 

forth by another court which states were given, no evidence that they 

the rule: "The testimony of a were not given, but taken in con- 



§ 794 Chakaotbb and Sufficiency of Evidence. 2127 

« 

Rule applied to order given. 

Where defendant and his wife testified unequivocally 
as to giving positive orders to a servant to do certain 
acts, and the plaintiff failed to deny this in express 
terms, but stated he did not remember having been at 
the defendant's house on that occasion or that such 



neotion with evidence showing that 
he oould and probably would have 
heaid them, had they been given, 
is sufficient to warrant the jury in 
finding they were not given." 
Moran v. Eastern R. Co., 48 Minn. 
46, 50 N. W. 930. See also Men- 
ard V. Boston & Maine R. Co., 150 
Mass. 386, 23 N. E. 214. Sub- 
stantially the same rule prevails in 
Illinois. Ohio & M. R. Co. v. 
Reed, 40 Bl. 47. Also in Pennsyl- 
vania (Hauser v. Railroad Co., 147 
Pa. St. 440, 23 Atl. 766), and many 
other states. In the case in 
Pennsylvania it was held that the 
testimony of the plaintiff who was 
proceeding over the crossing, was 
insofficient to raise a conflict in the 
testimony. In a case in the Fed- 
eral Circuit Court of Appeals, it 
was held that negative testimony 
of such a nature was insufficient 
to present an issuable fact. It was 
said: "In the very nature of 
things, their affirmative testimony 
that the warning was given must 
be accepted or proof of that fact, 
notwithstanding an equal or greater 
number of witnesses failed to notice 
it, from whatever cause. There is, 
in such cases no conflict ot evidence 
as to the matter in question.' The 
observation of the fact by some is 
entirely consistent with the failure 
oi others to observe it, or their for- 
getfulness of its occurrence. Horn 
V. Bait. & Ohio R. Co., 4 C. C. A. 

3 M. & S.— 10 



346, 54 Fed. 301. It was said by 
another court: "It is proved by 
the positive oath of the two indi- 
viduals on the engine, one of whom 
rang it (the bell) and by the others 
who witnessed the occurrence and 
heard the ringing of the bell. The 
two witnesses for the plaintiff 
merely say they did not hear the 
bell, but they do not say that they 
listened or gave heed to the pres- 
ence or absence of that signal. As 
against positive affirmative evi- 
dence by credible witnesses of the 
ringing of the bell or the sounding 
of a whistle, there must be some- 
thing more than the testimony of 
one or more that they did not hear 
it, to authorize the submission of 
the question to the jury. It must 
appear that they were looking, 
watching and listening for it; that 
their attention was directed to the 
fact so that the evidence will tend 
to some extent to prove the nega- 
tive. A mere 'I did not hear', is 
entitled to no weight in the pres- 
ence of affirmative evidence that 
the signal was given, and does not 
create a conflict of evidence justi- 
fying a submission of the question 
to the jury as one of fact." Cul- 
hane v. Railroad Co., 60 N. Y. 133; 
Reiney v. Railroad Co., 68 Hun 
495, 23 N. Y. Supp. 80; Hoffman 
V. Railroad Co., 67 Hun 581, 22 
N. Y. Supp. 463. 



2128 Masteb akd Sebvakt. ^794 

orders were given him, it was held that a verdict for the 
plaintiff could not be sustained.'** 

Rule applied where injured person testified she 
looked and listened but did not hear. 

Where a woman stepped upon the track in front of 
a locomotive, and her statement was that she looked and 
listened and did not hear signals, and six witnesses 
testified to the fact that signals were given, it was held 
that her statement was not sufficient to raise a confiict.'*' 

Rule applied where section man injured. 

Where the only testimony to the effect that signals 
were not given was that of the plaintiff, who was a sec- 
tion hand, injured in a collision of his car with a freight 
train, that he did not hear any signals of approach of 
the train, and it did not appear what the conditions 
were surrounding him at the time, and there was positive 
testimony by a number of witnesses that signals were 
given, it was held that a verdict for the plaintiff could 
not be sustained. It was said: ''There are cases in 
which negative testimony might, in the face of positive 
testimony, sustain a verdict; but in such cases not only 
must the comparative credulity of the witnesses be 
placed in the balance, but there must be something by 
which means of knowledge can be weighed. Where 
such testimony is reUed upon for a verdict, it devolves 
upon the party introducing it to show that he was where 
he would probably have heard the bell had it been rung 
or the whistle had it been sounded."'** 

Rule applied where engineer on rear engine of 
double header injured. 

A verdict was sustained which found that an engineer 
upon the rear engine of a double header, during a blind- 

362. Covel v. Harvey, 12 So. 364. International & Q. N. R. 
(Miss.) 462. Co. v. Arias, 10 Tex. Civ. App. 

363. Hauser v. Cent. R. Co. of 190, 30 S. W. 446. 
New Jersey, 147 Pa. St. 440, 23 

Atl. 766. 



§ 794 Chabacteb and Sufficiency op Evidence. 2129 

ing snow storm, was negligent in not hearing a danger 
signal from the head engine, he having testified he did 
not hear it, because certain others testified that they 
did hear it, there being no proof of persons on the for- 
ward engine that it was given, the engineer having been 
MUed."* 

Kansas rule qualified. 

In Kansas the same reasoning is given in the rule de- 
clared, with the exception that it is qualified by the 
statement that such testimony is of Uttle weight.^*® 

Rule not approved by Iowa and Missouri courts. 

In some cases the rule has not been strictiy applied. The 
Supreme Court of Iowa, and the courts of some other 
states, hold such evidence competent and proper to be 
considered by' the jury. The Iowa and Missouri cases 
are very Mberal in respect to the character and nature 
of the evidence to be submitted to a jury.'*^ 

Rule founded upon common knowledge and expe- 
rience. 

The country being traversed by a net work of rail- 
roads, the signals from engines have become familar 
sounds. Those whose dwellings border upon railroad 
tracks, and those who are accustomed hourly to hear 
the blasts of whisties and the ringing of bells, and see 
passing trains, ordinarily take no note of them. They 
hear and see, and yet no impression is made. How few 
persons who have been accustomed to the old clock 
upon the shelf take note as it strikes the hours that 
mark the passing time? How few could truthfully say 
that it did not strike? To give any weight to testimony 
of persons who have the opportunity merely to hear it 
strike, yet 'testify they did not hear it, is the merest 

365. MeGrath v. Great North- 367. Hanlon v. Missouri Pao. 
era R. Co.» 80 Minn. 450, 83 N. R. Co., 104 Mo. 381, 16 S. W. 233; 
W. 413. Murray v. Railroad Ck>., 101 Mo. 

366. Kansas City, F. S. & Q. 236. 
R. Co. V. Lane, 33 Kan. 702, 7 Pao. 

587. 



2130 Masteb and Sebvant« ^ 795 



nonsense. They may be honest in their statement, yet 
it fails to prove or tend to prove it did not strike. Its 
only force is that they took no note of it at the time, 
or, if they did, it was not impressed upon the mind. 
Much di£Ferent would be the case if a person, watching 
and waiting for an expected train, who was driving a 
horse, fractious and not accustomed to the cars, or 
otherwise circumstanced, so that his attention would 
naturally be directed to the subject of the giving of the 
signals. The testimony of such a witness to some extent 
would be positive in character as tending to prove a 
negative. 

Rule applied as to cause of an accident. 

Where the plainti£f testified that he was not sure 
whether he was caught in the belt or not, where the 
negligence charged was that such belt was uncovered, 
and none of his witnesses saw the accident, and a witness 
for the defendant testified that he saw the accident, 
and showed that the belt had nothing to do with it, it 
was held that a verdict should have been directed for 
the defendant.**' 

§ 795. Sufficiency of evidence to show negligence. 

The difficult question oftentimes arising in cases where 
there is an entire absence of direct proof as to the cause 
of an accident, or the manner in which a person lost his 
life, is to determine what may be legitimately inferred 
from the circimistances which appear from the evidence. 
Negligence must be shown by affirmative proof. The 
facts upon which it is to be inferred as a reasonable 
inference must be established by such proof. Negligence 
is not presumed; therefore it follows that the existence 
or non-existence of the facts cannot be left to conjecture. 
''Judicial determination must rest upon facts and legal 
liability must be determined by the law in appUcation 
of the facts. These rules will not exclude circumstantial 

368. Ford v. AnderaoD, 139 Pa. 
St. 265, 21 Atl. 18. 



§ 795 Chabacteb and Supficiency of Evidbnob. 2131 



evidence, for such evidence is often the strongest; but 
such evidence after all must establish facts. When 
Uability depends upon carelessness or fault of a person 
or his agents, the right of recovery depends upon the 
same being closely shown by competent evidence; and 
it is incumbent upon such a plaintiff to furnish such 
evidence to show how and why the accident occurred. 
Some fact or facts by which it can be determined by the 
jury and not left to the conjecture, guess or random 
judgment, upon mere supposition without a single known 
fact."»~ 

This language was used, where the only fact that was 
established by the evidence was that an employee of the 
defendant was found bruised and dead, in a hole cut 
through the floor in defendant's mill, and in which was 
water about six feet deep. How he came there was left 
entirely to inference from circumstances attending his 
employment. 

Unquestionably every party to an action at law has 
a right to insist upon a verdict or* finding based upon 
the law and the evidence in the case and not, in the 
absence of evidence, upon mere inference, conjecture and 
personal experience.'^ 



360. SoTonflon v. Menasha Pa- 
per & Palp Co., 56 Wis. 338, 14 N. 
W. 446. That neflrligonoe was 
proxiinate oatise may be shown by 
eiremnstantial evidenoe. Ltinde v. 
Cudahy Packing Co., 139 Iowa, 
688, 117 N. W. 1063. And it was 
said, in the absence of evidence 
that the defendant's agent knew 
of plaintiff's inexperience and ig- 
norance of the dangers connected 
with a machine, that the jury can« 
not be permitted, in deciding the 
question, to rely upon mere infer- 
ence, conjecture, and theur own 
personal experience. Sherman v. 
Menomonie Lumber Co., 77 Wis. 
14. 45 N. W. 1079. The fact of an 



accident, as between employer and 
employee, carries with it no pre- 
sumption, as in the case of injury 
to a passenger, of negligence on the 
part of the employer and it is an 
aflOrmative fact for the injured em- 
ployee to establish that the em- 
ployer has been guilty of negli- 
gence. It is not enough to show 
that he may have been guilty of 
negligence, the evidence must 
point to the fact that he was. Pat- 
ton V. Texas & Pacific R. Co., 179 
U. 8. 658; Minty v. Union Pao. R. 
Co., 2 Idaho, 437, 21 Pac. 660, 4 
L. R. A. 409. 

370. Sherman v. Menomonie 
Riv. Lbr. Co., 77 Wis. 14, 25 N. 



2132 



Masteb and SsBVAifrr. 



§795 



In order to prove a fact by circumstances, there should 
be positive proof of the facts from which the inference 
or conclusion is drawn, and not left to rest in conjecture, 
and when shown, it must appear that the inference 
sought is the only one which can fairly and reasonably 
be drawn from those facts. ''^ 

An inference cannot be drawn from a presumption, 
but must be founded upon some fact legally estab- 
Ushed."* 

As has been stated, circmnstantial evidence consists 
in reasoning from facts which are known or proved in 
order to establish such as are conjectured to exist, but 
the process is fatally vicious if the circumstances from 
which it is sought to deduce the conclusion depends 
itself upon conjecture.''' 

The plaintiff must prove something which warrants 
the inference of negligence on the part of the defendant, 
and not base his case upon facts just as consistent with 
care and prudence as with the opposite.*'* 

Two or more dauses which might have produced 
the injury. 

Where it is necessary to show a certain state of facts, 
it is not sufficient to prove two or more different states 
of case, one of which may be sufficient, but either of 
which may, equally, under the testimony, have existed.''* 

As was stated by the court, in a case where the injury 
was occasioned from a loose step on an engine, which was 
firm at the start upon the trip, but was found loose at 
the conclusion of the trip, there being no evidence as 



W. 1079; Mioare v. Monroe Stone 
Co., 154 Mioh. 362, 117 N. W. 939; 
Hamann v. Milwaukee Bridge Co., 
127 Wis. 550, 106 N. W. 1081. 

371. Ruppert v. Brookljm H. 
R. Co., 154 N. Y. 90. 47 N. E. 971. 

372. Douglas v. Mitchell, 35 
Pa. St. 443; Cosgrove v. Pitman, 
103 Cal. 768, 37 Pao. 232. 



373. Ruppert v. Brooklyn H. 
R. Co., 154 N. Y. 90, 47 N. E. 971. 

374. Bauleo ▼. Railroad Co., 
59 N. Y. 357, 17 Am. Rep. 325; 
Hayes v. Railroad Co., 97 N. Y. 
254; Railroad Co. v. Shertle, 97 
Pa. St. 450. 

375. Hughes v. Cincinnati, N. 
O. & T. P. R. Co., 91 Ky. 526, 16 
S. W. 276. 



§ 795 CHABA.CTBB AND SUFFICIBNCT OF EviDBNOB, 2133 

to what caused the defect: "Where testimony leaves 
the matter uncertain and shows that any one of a half 
dozen things may have brought about the injury, for 
some of which the employer is responsible, and for some 
of which he is not, it is not for the jury to guess between 
those half dozen causes and find that the negligence of 
the employer was the real cause, when there is no satis- 
factory foundation in the testimony for that conclusion." '^* 
And where the evidence is equally consistent with 
either view, — the existence or non-existence of negli- 
gence, — ^it is not competent for the judge to leave the 
matter to the jury. In such case the party has failed 
to establish the negligence of which he complains. '^^ 

Balancing the probabilities. 

It has been said: 'The rule that where an injury 
occurs that cannot be accounted for, and where the 
occasion of it rests wholly in conjecture, the case may 
fail for want of proof, should not be so extended as to 
result in a failure of justice or in densring an injured 
person a right of action, where there is room for balancing 
the probabilities and for drawing reasonable inferences, 
better supported upon one side than the other." '^* 

This was said in reference to the cause of an explosion 
of nitroglycerine. And also in an action where death 
was caused, there being no witnesses of the accident, 
it was said that if the circumstances shown justify legit- 
imate inference which brings defendant's liability within 
the realm of probability, rather than leaving it a mere 
matter of conjecture, the case is one for the jury.'^' 

It might be inferred from the foregoing that a jury 
could be i>ermitted to determine the cause of the acci- 
dent, upon mere probabiUties; as that one view or theory 
was the more probable than another. If so, the decision 
is of doubtful authority. The liability of the master, 

376. Patton v. Texas and Pa- Chemioal Co., 113 Mioh. 582, 71 | 
dflo R. Co.. 179 U. S. 658. N. W. 1081. 

377. Thompson Negligence, p. 379. Parker v. Union Station 
36i. Assn., 155 Mioh. 72, 118 N. W. 

378. Sohoepper v. Hanoock 733. 



2134 Masteb and Ssbvant. §795 



as has been stated, cannot be determined upon mere 
probabilities, only upon competent evidence. It was 
stated, by a court in which the rule prevails that 
the employee must show freedom from contributory 
fault, that where there is an entire absence of evidence 
as to what an employee, whose injuries resulted in death 
was doing at the time of the accident, it is not enough to 
show that one conjecture in regard thereto is more 
probable than another, as there must be some evidence 
to show that he was in the exercise qf due care, in order 
to justify a recovery.'*^ 

And where a boy, while riding on a street car, was 
either pushed off the car or jerked off by the defendant's 
carelessness, or he accidentally slipped off, while the 
car was in motion, it was said: ''The evidence fails to 
show that the boy's injury was caused by any act or 
neglect of the defendants. If bare probabilities are to 
be considered, it is difficult to determine what they tend 
to show; and in this case the circumstances proved are 
insufficient to establish negUgence on the part of the 
company. If it had been left to the jury to find whether 
the injury occiured through the carelessness of defend- 
ant's servants and they had found it did so occur, there 
is no evidence in the case sufficiently direct or positive 
to sustain such a finding. There must be something 
more than a mere probability of defendant's negligence. 
There must be some element of moral certainty."*'^ 

Merely proving a condition which might have pro- 
duced an injuiy presents no issue. 

A plaintiff fell in a night time on a defective side- 
walk and was to some extent injured by the fall. On 
that evening and the next and following days she com- 
plained of pain in her breast, and liniments were applied. 
Some months afterwards it was discovered that the 
breast was enlarged and hardened and in the meantime 
had continued to be painful. Surgeons pronounced the 

380. Tyndale v. Old Colony R. 381. Payne y. Railroad Co., 40 
Co.. 156 Mass. 503, 31 N. E. 055. N. Y. 8. 



§ 795 Chaeaotbb and Supficibncy op Evidenob. 2135 

disease sarcoma, a form of cancer, and with their advice 
the breast was amputated. Experts gave it as their 
opinion that a blow or bruise might have been the ex- 
citing cause of the growth, but such result would only 
have followed in case the germ of the disease existed 
in the system before the injury. The court say: "While 
an injury by external force might have caused it to 
develop, it may also have developed without such cause. 
Before she can recover she must establish that the rela- 
tion of cause and effect existed between the fall and her 
suffering. But when we look into the evidence we find 
it merely established a condition which might have been 
caused by an injury at the time, but whether such injury 
did occur is, imder it, a matter of surmise. The existence 
of a fact is not proven by evidence of a subsequent 
condition which is merely consistent with its existence 
and it was therefore error to submit the question to 
the jury.""" 

Something more than a probability must be shown. 

From the foregoing, as well as from an array of cases, 
many of which follow, where the question has been con- 
sidered, it is manifest that to meet the requirements 
of afiOrmative proof, something more must be shown 
than a mere probability of a negligent act or omission, 
or where the act or omission is established, something 
more than a mere probability that it was the direct or 
proximate cause of the injury. There must be some 
element of certainty. As stated:'** "There are no facts 
in evidence by which the jury or any one can form a 
certain opinion upon the subject so as to clearly deter- 
mine the question of his negUgence", which amounts 
to an expression that the evidence required to sustain 

382. Trapnell y. City of Red the possibility that the germs of 
Oak Junotioii, 76 la. 744, 39 N. the disease might have developed 



W. 884. It evidently was the at that time independent of the 

mote probable that the fall was fall she received, 
the cause of plaintiff's suffering, 383. Sorensonv.MenashaPaper 

and especially from the fact that & Pulp Co., 36 Wis. 338, 14 N. W. 

DO other cause appeared, other than 446. 



2136 Mastbb A2n> Sebvant. $795 



a verdict based upon the negligence must be clear and 
reasonably certain. Mere preponderance of evidence is 
not alone sufficient. Preponderance only arises where 
there is a conflict. It does not attach always or ordinar- 
rily to the character or sufficiency of the evidence. Evi- 
dence must be sufficient to establish a fact to a reason- 
able certainty to satisfy a jury that it exists. As was 
said in a leading case: ''There may have been a pre- 
ponderance of evidence tending to prove such facts or 
some or all of them, and yet the evidence be quite insuf- 
ficient to prove those facts."'** 

It may be correctly stated as a rule that proof of an 
alleged act or omission as causing injury is not sufficient 
to establish it as the cause, so long as other causes exist 
and were present, which might as well have caused it. 
Surmise and conjecture cannot supersede proof. There 
must exist some degree of certainty. There need not 
be absolute certainty or freedom from reasonable doubt 
but sufficient must be shown to overcome or more than 
balance any presumption that other causes may have 
produced it. 

Presumption in case of death that employee was 
in exercise of due care as showing negligence 
on part of master. 

Some courts have given decisive effect to a slight 
presumption and permitted jurors to draw therefrom 
an inference as to a defect or cause of injury, contrary 
to the well settled rule that an inference cannot be 
drawn from a presumption but must be founded on 
some fact legally established. Thus it was said: ''The 
law, out of regard to the instinct of self-preservation, 
will presume prima facie that a person who has suffered 
death by a railroad accident was at the time of the 
accident in the exercise of due care and the presumption 
is not overthrown by the mere fact of the injury," and 

384. Gores v. Graff, 77 Wis. 
174, 46 N. W. 48; Dunbar v. Mo- 
Gill, 64 Mich. 676, 31 N. W. 678. 



§ 795 Chabacteb and Sufficiency of Evidence. 2137 



sach rule so declared was applied where a conductor, 
in some manner not known, fell or was thrown from a 
car, the stirrups of which on one side had been removed, 
and a jury permitted to infer therefrom the cause of the 
accident and a cause chargeable to the master. '^^ 

This presumption, though quite often stated, is a 
violent one, and quite generally contrary to practical 
experience. However, there is a coimtervailing pre- 
sumption of equal force. The presumption of freedom 
from contributory negligence where a servant is foimd 
dead at his place of work, is balanced by the presumiH 
tion of freedom from negligence on the part of the mas- 
ter. "• 

Proof beyond a reasonable doubt. 

It is elementary that the negligence of the master, 
or that such negligence was the proximate cause of 
the accident, need not be proved beyond a reasonable 
doubt.'" 

Application of rules. 

The rule that negligence cannot be presumed from 
the fact of injury, laid down in a multitude of cases, 
has been applied, or sought to be applied, in many 
cases; for instance, where the injury was caused by the 
absence of key in draw bar;''' appliance failing to oper- 



385. Cameron v. Great North- 
em R. Co., 8 N. Dak. 124, 77 N. 
W. 1016. 

386. Allen v. Kingston Coal 
Co., 212 Pa. St. 64, 61 Atl. 572. 

387. Ltinde v. Cudahy Packing 
Co.. 139 Iowa. 688, 117 N. W. 
1063. 

388. Where the cause of the in- 
jury was the key which held a draw 
bar in place falling out of its place, 
and such kejns were fastened ordi- 
narily by a split ring, which was 
miaging after the accident, and it 
appeared that by a jar of the cars 
such ring might be caused to break 



and the key work out, and that the 
car had run forty miles from its 
starting place before the accident 
happened, and that if the ring was 
out the least jar would cause the 
key to jump out, and the conten- 
tion was that a proper inspection 
would have discovered the absence 
of the ring, it was held that the ab- 
sence of the key after the accident 
being consistent with the exercise 
of due care by defendant, it afforded 
no presumption of negligence, or 
that the key was not properly 
fastened when the train was made 
up, and it was error for the court 



2138 



Masteb and Sbbyant. 



§795 



ate;'** defect in appliance;*** boiler exploding; ••* brake 
becoming loose;'** bridge timber breaking ;*•• defect in 



to submit the question to the jury. 
Einoaide v. Oregon, S. L. & U. N. 
R. Co., 22 Greg. 35, 29 Pao. 3. 

389. Where an applianoe failed 
to operate, and the cause was un- 
explained, it was said that negli- 
gence cannot be presumed from 
the fact of injury, and though it 
may be inferred firom the facts 
proved, it cannot be based upon 
guesses or conjecture. Redmond 
V. Delta Lumber Co., 96 Mich. 
546, 66 N. W. 1004. 

390. Where the alleged negli- 
gence was a defective appliance, a 
defective brake and trap door on a 
car raised above the level of the 
roof, proof of the existence of the 
defects was not sufficient to take 
the case to the jury as the plaintiff 
was bound to show by a preponder- 
ance of the evidence a casual con- 
nection between the defects and 
the injury. Such evidence must 
be direct or circumstantial. It 
must be stronger than merely con- 
sistent with plaintiff's theory. 
The manner in which plaintiff was 
killed was merely conjectural. 
O'Connor v. Chicago, R. I. & P. 
R. Co., 129 la. 636, 106 N. W. 161. 
See also Clark v. A. Garrison Foun- 
dry Co., 219 Pa. St. 426, 68 AU. 
974. 

391. Where an engineer and 
fireman were both killed by the ex- 
plosion of the locomotive boiler, 
and no witnesses observed what 
the engineer did immediately be- 
fore the explosion, evid^ce as to 
his general reputation as a careful 
and competent engineer and a sober 
man, was admissible upon the ques- 



tion of the exercise of ordinary care. 
Evidence of non-experts was ad- 
missible as to the conditions of the 
boiler with respect to old or new 
breaks or cracks, in the broken 
stay bolts of the engine. Also as 
to when the locomotive was built, 
the number of miles run since, and 
the fact it had once collided with 
another engine, and these, with 
other circumstances, were sufficient 
to carry the case to the jury npon 
the question of the master's negli- 
gence in respect to the condition 
and safety of the boiler. XUinois 
Cent. R. Co. v. Prickett, 210 lU. 
140, 71 N. E. 435. 

392. Where an employee was 
injured by the brake becoming 
loose under the car, and it was un- 
certain whether the key which held 
broke or dropped out, and there 
was no evidence to determine 
whether it would have been dis- 
covered, if the defect existed, by 
ordinary inspection, it was said 
that the several questions could 
not be left to the mere conjecture 
of the jury. Philadelphia & Read- 
ing R. Co. V. Hughes, 119 Pa. St. 
301, 13 AU. 286. 

393. An employee was injured 
by the breaking of one or two tim- 
bers which formed a sort of a bridge 
over a run. The evidence dis- 
closed no defect in them when put 
in, and, if sound originally, five 
years was not sufficient to cause 
dangerous decay or weakness. It 
was suggested that the timbers 
might have become weakened by 
rock falling upon the bridge. It 
was said: The mere fact of such 



§ 795 Chabagteb and Sufficiency of Evidence. 2139 



car;*** car moving from siding on main track;"' derrick 



injniy is no evidenoe of fault. It 
may be gaeeaed or aEonmsed that 
there was negligenoe somewhere, 
and one juror may gaeaa that it 
was in want of a oareful seleotion 
of timber, another that it was in 
the want of subsequent inspection, 
or in the want of care to prevent 
rocks falling on the bridge, but the 
case affords no safe ground for any- 
thing beyond conjecture, and if the 
master can be held liable, under the 
circumstances, on mere guess or in- 
ference, the rule that an employee 
assumes the ordinary risks of his 
employment will be wholly done 
away with. Quincy Mining Co. 
V. Eitts, 42 Mich. 34, 3 N. W. 240. 
394. It was held proper for the 
jury to determine whether the cars 
left the track by reason of their 
defective condition, though it ap- 
peared there was a broken axle 
which would have produced the 
wreck. It was said: There was 
evidence tending to show that the 
aade was broken by the speed of 
the train over the rough road. 
Swadley v. Missouri Pacific R. Co., 
118 Mo. 268, 24 S. W. 140, 40 Am. 
St. Rep. 366. Under the Ohio 
statute, evidence that a car was 
defective and that an employee was 
injured by such defect, is prima 
fade negligence. A switchman was 
injured while attempting to place 
his foot on the step of a car, and 
he testified that in such attempt 
his foot struck the side and slipped 
off and that from the way his foot 
hit it was wlantiug way back. The 



car was examined the next morning 
and it was found one of the steps 
was bent imder the sill. Whether 
such step was the one upon which 
the switchman attempted to moimt 
or one on the opposite comer of the 
car, depended on which of two 
connecting tracks the oar had been 
transferred over, there being no 
evidence as to this fact. It was 
held that a jury might reasonably 
infer that it was the one found 
defective. O'Connell v. Pennsylva- 
nia Co., 118 Fed. 989. 

395. Where an engineer was 
injured in a collision with a flat 
car which, half an hour previous, 
had run from a side track onto the 
main track, and stopped partly off 
the track, and various theories were 
advanced as to what caused the 
car to run from the siding, but 
there was no proof, and the jury 
having found that it was the wind, 
it was held that, while negligence 
might be inferred from the droum- 
stances proved, it could not from 
conjecture, and the verdict was set 
aside. Hewitt v. Railwi^ Co., 67 
Mich. 61, 34 N. W. 652. Where an 
engineer was found dead in his cab, 
and it appeared that a box car had 
moved on a side track, close to the 
main track, with which he mig^t 
have come in contact, it was held 
that a non-suit was proper, as there 
was no evidence of negligenoe on 
the part of the company. Ballard 
V. New York, etc., R. Co., 126 Pa. 
St. 141. 



2140 



Masteb and Sebvant. 



^795 



boom falling''' where cause of injury is uncertain; ••^ 
derailment of engine ;••• furnace door blowing oi)en;'** 



396. Thero being: evidenoe that 
a certain pin provided to be used in 
the lever bar of the spool upon a 
derriok, was worn, and after the 
aooident was found out of plaoe, 
this was suflEicient to sustain a ver- 
dict based upon the want of repair 
of such derrick, causing the boom 
and the load it was lifting to fall 
and injure an employee. Union 
Bridge Co. v. Teehan, 190 m. 374, 
60 N. E. 633. 

397. It being claimed by the 
plaintiff that his injuries from a 
stick flying back from the saw he 
was operating was caused by a de- 
fect in the dust board in front of 
the saws, one end being allowed to 
swing loose when it should have 
been fastened, and there being no 
evidence that such defect, if it was 
a defect, contributed in any man- 
ner to the injury, but that it might 
have happened in any one of a va- 
riety of ways, a judgment for the 
defendants was proi>er. Eoslowski 
V. Thayer, 66 Min. 150, 68 N. W. 
973. Though no witness testified 
that a set screw rather than the 
belt caught an employee, resulting 
in his death, while he was attempt- 
ing to replace a belt upon a ptdley, 
there was circumstantial evidence 
which made it a question for the 
jury. Little v. Bonsfield & Co., 
164 Mich. 369. 117 N. W. 369. 

398. There being no direct evi- 
dence what an employee who went 
under an engine to clean under it, 
was doing at the particular time 
of the running of another engine 
against the one upon which he was 
working, or how he came to re- 
ceive his injuries, an InBtmction 



that the jury should consider the 
instincts which naturally lead men 
to avoid injury and preserve their 
own lives and the presumption that 
they will ordinarily do so, was not 
error. Morbey v. Chicago & N. 
W. R. Co., 116 la. 84, 89 N. W. 
106. The alleged cause of the de- 
railment being alleged defects in an 
engine, the injured employee or 
those that represent him, must 
show some casual connection be- 
tween such defects and the acci- 
dent, to warrant a recovery against 
the company because of its cliumed 
negligence in failing to remedy the 
defects. It is not enough to indi- 
cate a state of facts from which 
there is a possibility the accident 
occurred. The facts must be such 
as to indicate a reasonable proba- 
bility that the accident oocurred 
from the negligent acts charged. 
Peppett V. Michigan Cent. R. Co., 
119 Mich. 640, 78 N. W. 900. An 
engine being derailed, evidence that 
the accident occurred at a cattle 
guard at the end of a switch, the 
guard being low and the timbers in 
it somewhat decayed which would 
cause it to sink under the weight of 
the engine and the pilot to strike 
the guard rail and move the switch, 
witnesses giving their opinion that 
such condition caused the derail- 
ment, it was held, made a case for 
the jury. Bach v. Iowa Central 
R. Co., 112 la. 241. 

399. Where a fireman was in- 
jured by jumping from the cab of 
the engine, which he was forced to 
do by the engine kicking, that is, 
the furnace door was blown open 
and flames forced from the furnace 



§ 795 Chabacteb and Sufficiency of Evidbncb. 2141 



defect in hand car;^^ defect in machine ;*°^ stone thrown 
from passing train;*®* torpedo left on track;*®' defective 
insulation of wire.*®* 



burst into the cab, and there was 
no oertain proof as to what caused 
this condition, different experts 
advancing theories as to what 
mifi^t have caused it, some of 
which, if the cause, would charge 
negligence upon the servants of the 
company as would make it liable, it 
was held there was nothing upon 
which to base a verdict but mere 
conjecture, which would not satisfy 
the demand for afltenative and 
preponderating proof. Orth v. St. 
Paul, M. & M. R. Co., 47 Minn. 
384, 50 N. W. 363. 

400. An action for personal in- 
juries alleged to have been caused 
to the employee of a railroad com- 
pany operating a hand car by a 
defect in the machinery of the car 
from which he was thrown while 
turning one of the cranks, cannot 
be maintained, if the cause of the 
injury is wholly conjectural, dare 
V. New York & N. England R. Co., 
107 Mass. 39, 44 N. E. 1054. 

401. Where an employee was 
injured while operating a machine 
used for shaping iron plates by the 
"drop", so called, consisting of a 
long piece of iron, falling unexpect- 
edly on the plaintiff's hand, it was 
said: It was not essential to a re- 
covery that the employee should be 
able to show the precise nature of 
the defect, if it is made to appear 
that the accident occurred by rea- 
son of some defective condition of 
the maohinenr* chargeable to the 
negligence of the employer. (What 
the defects were, referred to in the 
opinion, does not appear.) Nelson 



V. St. Paul Plow Works, 57 Mian. 
43, 58 N. W. 868. 

402. An employee, engaged 
with others in raishig and ballast- 
ing a track, was injured by stone 
being thrown from a i>assing train, 
presumedly by its rapid movement, 
striking him upon the leg, break- 
ing it. There was no proof on the 
part of the plaintiff tending to show 
where the stone came from or how 
and by .what means it was put in 
motion. It was said: The cause 
of the accident resting on pure con- 
jecture, without evidence tending 
to explain it or to connect it in any 
way with any negligence of the ap- 
pellant, at the close of respondent's 
evidence, it appeared to be a case 
of unaccoimtable misadventure for 
which no one was responsible. 
Steffen v. C. & N. W. R. Co., 46 
Wis. 250, 50 N. W. 348. See Mor- 
rison V. Phillips & Colby Const. 
Co., 44 Wis. 405. 

403. Where an employee was 
walking along the track to flag a 
train by placing torpedoes on the 
track, and after going a short dis- 
tance he felt his foot strike some- 
thing and a heavy explosion came 
from under him, rendering him in- 
sensible, the judgment of the lower 
court was reversed in directing a 
verdict for the defendant upon the 
groimd that a jury might infer 
that the torpedo was negligently 
left on the track where employees 
were required to work. The acci- 
dent occurred in Michigan. Brom 
V. Minneapolis, St. P. & S. S. M. 
R. Co.. 108 Mum. 1, 121 N. W. 



2142 



Masteb and Sebvant. 



§795 



Sufficiency of proof as to cause of death. 

Where a brakeman was killed and the accident was 
unknown until the train had proceeded some miles, and 
it appeared that it was a dark night and he was last 
seen on a car going in the direction of a flat car, to reach 
which he would be obliged to descend a ladder at the 
side of a car, and in doing so he would be in danger of 
contact with a ledge of rocks near the track where his 
body was found; also his coupling stick, and the one 
wound on his right side, were consistent with the theory 
of such contact, it was held that a peremptoiy instruc- 
tion for the defendant was proi>er. That there was 
nothing definite as to whether he met death in this 
manner or by stumbling and falling. The manner of 
death was mere speculation.^* 

Where the body of a brakeman was found on the 
track, having been run over by the cars, and a part of 
his clothing was found upon a, brake at the rear of the 
train, and it was contended that the inference to be 
drawn was that his fall from the car was caused by the 
parting of the train, it appearing, however, that the 
cars, when the train parted, were without brakes, it was 
held that there was no evidence as to the manner of his 
death. *«• 



123. A oar repairer threw a wrench 
on the oar on whioh he was at work. 
It struok a torpedo lying there and 
exploded, resulting in injury to 
him. He reoognized it as one of 
the torpedoes used by the oompany, 
but he had been unable to ascertain 
by whom it was placed there. It 
was held a mere matter of conjec- 
ture and insufficient upon which to 
base a verdict for the plaintiff . Ful- 
ler V. Ann Arbor Railroad Co., 141 
Mich. 66, 104 N. W. 414. 

404. It seems to have been 
held, in the absence of direct proof, 
that a wire from which the insula- 
tion was broken, caused the acci- 



dent. It evidently appeared that 
more than one cause might have 
produced it. Thomiwon v. New 
Orleans & C. R. Co., 107 La. 52, 
32 So. 177. 

405. Wintuskis' Admz. v. 
Louisville & N. R. Co., 14 Ey. L. 
Rep. 579, 20 So. 819. See also 
Sauer v. Union Oil Co., 43 La. Ann. 
699, 955, 9 So. 566; VI. Cent. R. 
Co. V. Cathey, 70 Miss. 332, 12 So. 
253. 

406. Tuck V. Louisville & N. R. 
Co., 98 Ala. 150, 12 So. 168. See 
also Short v. New Orleans & N. E. 
R. Co., 69 Miss. 848, 13 So. 826. 



§ 795 Chasagteb and SurnoiBNroY of Evidence. 2143 

Where a brakeman, in some unexplained way, fell 
under the wheels of an engine and was killed, and the 
plaintiff gave some proof of a want of repair in the track 
and of a defective step on the engine, it was said, in 
reversing a verdict for the plaintiff, that the case was 
sabmitted to the jury without evidence, and the verdict 
has no better foundation than a guess, or at most mere 
probabilities.^^ 

So where the evidence was that just after a train 
loaded with gravel started down a grade, a brakeman 
thereon, who had been told by the conductor that the 
brakes were to be left set, till the bottom of the grade 
was reached, and who so far as it appears had no occa- 
sion to go to them till such time, was run over by the 
train. There was no direct evidence as to the manner of 
his death. His cap was found at the foot of a tree 
which stood eighteen inches from the side of the cars 
on which were the brakes. His body was sixteen feet 
beyond the tree. A bruise was on that side of his head 
which would probably have been exposed to the tree 
if he had taken hold of the brake to tighten or loosen 
it. It was held that the evidence was insuffix^ient to 
submit to the jury the cause of the accident, as this was 
a mere matter of conjecture. ^^ 

But where a brakeman was killed by falling from a 
box car, on the top of which near the brakes was a large 
hole, and the deceased was last seen alive standing at 
the brake near this hole, it was held that evidence ai>- 
peared from which the jury might consider that his death 
was owing to the hole in the top of the car.^ 

Where the cause of action was for the negligence of an 
engineer in stopping a car before signal given, there 
must be evidence connecting the accident and death 
of a brakeman with such conduct of the engineer. ^^^ 

407. Philadelphia & Reading R. 409. Bromley v. Binningham 
Co. V. Sohertle, 97 Pa. St. 450. M. R. Co., 95 Ala. 397, 11 So. 341. 

408. Maiinizig v. Chicago & W. 410. De Whirst v. Boston & 
M. R. Co., 105 Mich. 260, 63 N. W. Maine R. Co., 167 Mass. 402, 45 
312. N. E. 757. 

3 M. ft 8.^11 



2144 Masteb and Sebvant. ^795 

In Massachusetts the burden is upon the plaintiff 
to show absence of contributory negligence, and hence 
where a brakeman was found unconscious, lying upon 
the top of a car almost immediately after passiii^ 
under a bridge, having been seen by the engineer a 
moment before, what he was doing at the moment and 
whether the gap in the tell tales contributed to the 
accident, was a matter of surmise. ^^^ 

Evidence was held sufficient to furnish a reasonable 
basis for the inference that the death of plaintiff's in- 
testate was caused by the negligence of defendant in 
directing him to fix a hot box on a freight car and then 
starting the train without warning before he completed 
the work, although there was no direct evidence as to 
how he met his death or where he was or what he was 
doing at the time.*" 

Where a brakeman standing on the top of a car in 
apparently good health, just before a train passed under 
a low bridge and immediately thereafter he was found 
lying on the top of the same car near the center in a 
dying condition, no evidence of wounds or bruises upon 
his person having been produced, the fact of his death 
by contact with the bridge was not established.*" 

The time when and the manner in which an accident 
happened to a railroad employee whose death occurred 
through the alleged negligence of defendant in starting 
a train, is a question for the jury where there is evidence 
that when last seen he was between a car and engine 
about to make a coupling, that he had a very brief time 
in which to make it; that no one saw him come out; 
that the coupling was made and that his body was 
foimd at about the place it was made.*" 

411. Murphy v. Boston & Al- 413. Fitzgerald v. N. Y. C. & 
taay R. Co., 167 Mass. 64, 44 N. H. R. R. Co., 154 N. T. 263, 48 N. 
E. 1087, 42 Am. Rep. 240. E. 514. 

412. Moores v. Northern Pao. 414. MoHugh v. Manhattan R. 
R. Co., 108 Minn. 100, 121 N. W. Co., 179 N. Y. 378, 72 N. B. 312. 

3m. 



§ 795 Chabagteb and Sufficiency of Evidence. 2145 



Where in an action against the master for the death of 
a brakeman in attempting to couple cars, the cause of 
the accident rests on circumstantial evidence and it is 
quite as consistent that deceased stepped on loose gravel 
and was thrown as it was that he stepped into a de- 
pression negligently left between the tracks, and it is 
a mere matter of conjecture how it all happened, a ver- 
dict is rightly directed for the defendant.*" 

Other illustrations of the attempt to apply the general 
rule where the employee who was killed was a brake- 
man;*" employee conveying heavy timbers;*" em- 



415. Tibbitts v. Mason City & 
Ft. D. R. Co., 138 la. 178, 115 N. 
Vr. 1021. 

416. In an action against a rail- 
road oomx>any for the death of a 
brakeman, it appeared that the de- 
oeased was fatally injured on a dark 
night while attempting to couple 
can at a street crossing; that one 
of the planks at the crossing be- 
tween the rails had split off near 
one end, leaving a space sufficiently 
wide to admit a man's foot; that 
deoeased's version of the accident, 
given directly after it occurred, was 
that "he got caught in the planking 
between the plank and the rail, and 
the brake beam pushed him back"; 
that blood was found on the ground 
oloee to the defect in the planking; 
that the deceased was picked up 
about two car lengths from the 
croflsing, and that the space be- 
tween the rails looked as though a 
body had been dragged along for 
that distance. Held, that it was 
error to refuse to direct a verdict 
for defendant on the ground that 
it was purely conjecture as to 
whether the deceased caught his 
foot or merely stumbled against 
the end of the planking. Enapp 



V. Chicago & WTest. Mich. R. Co., 
114 Mich. 199. 72 N. W. 200. 
Where a brakeman was killed while 
coupling cars, no one seeing the 
accident, but he was found close 
to a defective frog, and there were 
indications that his foot was struck 
by the wheel and run over length- 
wise, while eyelets of a shoe were 
foimd within three or four inches 
of the frog and eyelets "^ere missing 
from his shoe, this was sufficient 
to raise a question for the jury as 
to whether his foot was caught in 
the frog. Jones v. Flint & P. M. 
R. Co., 127 Mich. 198. The mere 
fact that a brakeman was killed in 
falling from a train composed of 
twelve or fourteen cars, one of 
which was defective in that it had 
no foot board| is not sufficient to 
warrant the inference that he fell 
from such car or that it in any man- 
ner caused his fall. Rogers v. 
Louisville & N. R. Co., 88 Fed. 462. 
417. There being no evidence 
as to how or as to the manner in 
which an employee received his 
injuries while employed to take 
heavy timbers from the first floor 
to the second floor of a building 
being constructed, the verdict was 



2146 



Master and Sbbvant. 



^795 



ployee in mill;^^* employee in packing house ;^^' em- 
ployee on vessel;*** railroad engineer;*" fireman;*** or 
switchman,**' are set forth in the notes in connection 
herewith. 



properly directed for defendant. 
BinequioE v. Haglin, 103 Minn. 
297, 116 N. W. 271. 

418. Plaintiff's intestate, an em- 
ployee of defendant, was found 
bruised and dead in a hole which 
had been cut in the floor of de- 
fendant's mill, and in which was 
water about six feet deep. There 
was no evidence tending to show 
how he came into the hole; it 
rested wholly in conjecture. It 
was held that a non-suit was prop- 
erly ordered. It was said: There 
are no facts in evidence by which 
the jury or any one else can form a 
certain opinion upon the subject 
so as to clearly determine his neg- 
ligence. How then can an intel- 
ligent verdict be rendered? Soren- 
son, Admz. v. Menasha Paper Sb 
Pulp Co., 66 Wis. 338, 14 N. W. 
446. See also Tyndale v. Old Col- 
ony R. Co., 166 Mass. 603, 31 N. 
E. 666. 

419. Plaintiff's burden of proof 
of decedent's due care at the time 
he is claimed to have been wrong- 
fully killed, is sustained prima facie 
by showing that when last seen he 
was acting in the line of his duty 
without apparent negligence and 
there is no living witness or direct 
testimony as to the manner of his 
death. There being no evidence 
as to the manner in which the de- 
cedent came to his death, only the 
situation after the accident, the 
jury were justified in finding that 
he came to his death by reason of 
an insufficient guard about a fly 



wheel pit. That the lower railing 
guarding the pit being twenty-five 
inches above the floor left a space 
through which, upon the plaintiff's 
falling from any cause, his foot 
might slip through and come in 
contact with the wheel. Lunde v. 
Cudahy Packing Co., 139 Iowa, 
688, 117 N. W. 1063. 

420. Where an employee of a 
steamship comx>any was alleged to 
have fallen overboard from one of 
its vessels and drowned, attribut- 
able to the negligence of the de- 
fendant, and it did not appear from 
the evidence how or in what manner 
he was lost from the ship, no one 
having testified as to having seen 
him fall or seen him upon the deck, 
but it did appear that the iron 
doors of the forward port had been 
left open by another employee and 
the 0];>ening guarded only by a rope 
drawn across it, it was said: There 
is no direct proof as to how deceased 
met his death. There is nothing 
to show that he fell through the 
open port or that his exit from the 
ship was aoddentai. It is true a 
theory may be adopted which 
would lead to the moral conclusion 
that his death was accidental while 
in the discharge of his duties and 
in the exercise of reasonable care, 
but all this falls very short of sus- 
taining the burden of proof under 
which the plaintiff rested. Geo- 
ghegan v. Atlas Steamship Co., 146 
N. Y. 369, 40 N. E. 607. 

421. An engineer upon the for- 
ward engine of a double header was 



§ 795 Chabagteb and Sufficiency of Evidbnce. 2147 



killed by th^ derailment of his en* 
gfine. The claim was that after it 
was derailed, he gave a danger sig* 
nal, which was not heeded by the 
engineer upon the rear engine, and 
that if he had heard it, and re- 
versed his engine, instead of con- 
tinuing to push the forward engine, 
the latter engine would not, though 
derailed, have been overturned. 
There was some evidence that the 
engineer on the forward engine 
gave a danger signal a short dis- 
tance from where his engine was 
was found, that the brakes were 
set upon his engine, and from this 
a verdict was permitted to stand, 
that the proximate cause of the 
death of the engineer was the negli- 
gence of the engineer of the rear 
engine in not hearing such signal 
and hence in pushing the forward 
engine over, after he should have 
been aware that there was accident 
and danger. McGrath v. Great 
Northern R. Co., 80 Minn. 450, 83 
N. W. 413. 

422. Where there was no proof 
as to how a fireman came upon the 
track, and no proof from which a 
legitimate inference could be drawn, 
it was held that no case was made 
out. It was said that conjecture 
cannot be allowed to supersede 
proof. Borden v. D. L. & W. R. 
Co., 131 N. Y. 671, 30 N. E. 686. 
A fireman in defendant's employ 
was killed by the bursting of a joint 
of a steam pipe. The cause was 
speculative. Plaintiff's theory was 
that the joint was defective and to 
support it evidence was introduced 
to the effect that the joint had been 
leaking for some time and after- 
wards a crack was discovered there- 
in of such a character that it must 
have existed for some time. There 



was no evidence of improper con- 
struction or that the leakage itself 
was a signal of danger or that an 
inspection would have revealed the 
defect. The evidence was insuf- 
ficient to support the theory of the 
plaintiff or to show negligence on 
the part of the defendant. The 
bursting may have been caused by 
an excessive pressure of steam or 
other causes not attributable to 
the employer. Voight v. Michigan 
Pen. Car Co., 112 Mich. 604, 70 
N. W. 1103. 

In an action for the death of a 
fireman claimed to have been 
caused by the splitting of a foot 
board upon a switch engine, it was 
held that under the evidence it was 
a mere matter of conjecture as to 
whether the board split and caused 
him to fall or he fell from some 
other cause, and the board split as 
it went over him, and hence a ver- 
dict was properly directed for the 
defendant. Powers v. Pere Mar- 
quette R. Co., 143 Mich. 379, 106 
N. W. 117. 

423. There being no direct evi- 
dence as to negligence on the part 
of the engineer by which a switch- 
man was caught between the en- 
gine and mail car and crushed, it 
was held that from the accident 
and proper inferences to be drawn 
from the position of the car and 
engine and other circumstances, 
the engineer, after starting his en- 
gine, reversed it and backed against 
the car. Rogers v. Minneapolis & 
St. 8. M. R. Co., 99 Minn. 34, 108 
N. W. 868. Where an employee, 
while riding two loaded gondola 
cars, was foimd lying upon the 
track imdemeath and about six 
feet from the cars he was riding, 
immediately after such cars had 



2148 



Master and Sebvant. 



^§796, 797 



§ 796. Sufficiency of evidence to show want of contrib- 
utory negligence. 

Where the burden of proving that the injured servant 
was in the exercise of due care rests on plaintiff, and the 
servant was killed in the accident, and there is no living 
witness or direct testimony as to the manner of his 
death, a prima facie case is made out by proving that 
the deceased, when last seen, was acting in the line of 
his duty without apparent negligence."* 

§ 797. Res ipsa loquitur. 

As already stated, ordinarily mere proof of the hai>- 
I>ening of an accident is not prima facie proof of negli- 



gence. 



4S6 



been kioked to a switch track, there 
being no evidence that the cars, 
though driven faster than neces- 
sary to be coupled with other cars 
on the switch track, were driven 
with unusual force or speed, it 
was held there was not sufficient 
evidence to justify an inference 
that the switchman met his death 
because of any negligence charge- 
able to the master. Griffen v. 
Minn. Transfer Co., 94 Minn. 191, 
102 N. W. 391. 

424. Lunde v. Cudahy Packing 
Co., 139 Iowa, 688, 117 N. W. 
1063. See also supra, presump- 
tions. 

425. The mere fact that an en- 
gine step became loose and turned 
with an employee thereon after the 
run was over, and during which it 
had been used several times by the 
engineer and fireman without no- 
ticing any defect, it appearing the 
step had recently been replaced 
and the nut screwed on tight, is not 
sufficient to charge the company 
with negligence. Patton v. Texas 
& P. R, Co., 96 Fed. 244. Where 
t here was a latent defect in a brake 



rod, negligence did not appear from 
the mere fact of the defect, it ap- 
I)earing it was not discovered upon 
proper inspection. Smith v. Rail- 
way Co., 42 Wis. 620. 

Appliance DEFECTIVE. The mere 
proof that an appliance was de- 
fective and that an employee was 
injured while using it, is not suffi- 
cient to prove that the injury was 
caused by the defect. Plefka v. 
Enapp, Stout & Co. Co., 146 Mo. 
316, 46 S. W. 974. 

Block between bails. The rule 
that the happening of an injury is 
not evidence of negligence was ap- 
plied where an employee was in- 
jured while pushing a huge trans- 
fer table in a pit, by reason of a 
block between the rails obstructing 
the same, such block being no part 
of the apparatus, and there was no 
proof as to who placed it there or 
whether it was there by accident, 
and a few hours before it was not 
there. Murphy v. Great Northern 
R. Co.. 68 Minn. 526, 71 N. W. 662. 

Bbakes. It was held that a 
brakeman thrown from a car while 
releasing a brake could not recover 



§ 797 Chabactbb and Sufficiency of Evidence. 2149 

In some cajses, however, where the accident is unusual, 
under the circumstances, and there wa.s present some 
defect, act or omission as the basis of the alleged negli- 
gence, negligence has been presumed from the mere 
proof of the accident. **• 



for resolting injuries in the absence 
of evidence of any defect in the 
brake that wotdd cause it to stick, 
or proof of any 4ef6Ct accompany- 
ing it8 release that would tend to 
throw him off. Louisville & N. R. 
Co. V. Binion, 08 Ala. 570, 14 So. 
619. 

Car construction. There being 
no evidence of the want of repair 
of a car, nor that its manner of con- 
struction was improper or unneo- 
essarily dangerous, it was held that 
the question of negligent construo- 
tion was one which a jury might 
infer from its normal condition. 
Grand Trunk Railway Co. v. Ten- 
nant, 66 Fed. 922. 

Emebt WHEEL BURSTING. Where 
the alleged cause of injury was the 
bursting of an emery wheel, and 
there was no evidence that there 
was anything improper in the con- 
struction or setting up of the mar 
chine, or any defect in the wheel 
known, or which ought to have 
been known, to the employer, it 
was held that the plaintiff could 
not recover. Simpson v. Pittsburg 
Locomotive Works, 139 Pa. St. 
245, 21 Atl. 386. 

Engine deflected to side 
TBAcx. There being no evidence 
that a switch was defective and 
caused an engine to be deflected to 
a siding, resulting in injury to an 
employee, other than an inference 
from the accident itself, and several 
other causes might have produced 
that condition, a charge of negli- 



gence was not sustained. Savitz v. 
Lehigh & N. £. R. Co., 199 Pa. St. 
218, 48 AU. 967. 

Stone thrown from moving 
TRAIN. The rule was applied 
where a section man was injured 
by a stone which in some maimer 
was thrown from under a moving 
train. Steffen v. Railway Co., 46 
Wis. 259, 60 N. W. 348. 

426. Steams v. Ontario Spin- 
ning Co., 184 Pa. St. 519, 39 L. R. 
A. 842. "Where an accident has 
occurred, and the physical facts 
surrounding it are such as to create 
a reasonable probability that the 
accident was the result of negli- 
gence, in such case, the physical 
facts themselves are evidential, and 
furnish what the law terms evidence 
of negligence in conformity with 
the majdm, res ipsa loquitur. The 
cases are not in full accord upon 
this question. It is often difficult 
to determine when this maxim is 
to be applied, and its application 
must depend to a very great extent 
upon the circumstances of each 
case as it arises. . . . Without 
attempting to formulate a rule 
embracing every case to which the 
maxim is to be applied, we think it 
is clear from the authorities cited, 
that when the defendant owes a 
duty to the plaintiff to use a cer- 
tain degree of care in respect to the 
thing causing the accident, to pre- 
vent the occurrence of such acci- 
dent, and the thing is shown to be 
under the management of the de- 



2150 



Masteb and Sebvant. 



^797 



This doctrine of ''res ipsa loquitur" (the thing 8i)eakB 
for itself) imports that the plaintiff has made out a 



fendant or his servaats, and the 
aooident is such as in the ordiiuury 
course of things does not occur if 
those who have the management 
use proper care, it affords evidence, 
in the absence of evidence showing 
that it hap];>ened without the fault 
of the defendant, that the aooident 
arose from the lack of the requisite 
care. In such case the occurrence 
itself, unexplained, shows prima 
fade a shortage of legal duty on 
the part of the defendant. This 
doctrine does not dispense with the 
rule that the party who alleges 
negligence must prove it, but, on 
the contrary, it only determines 
the mode of ixroving it, or what 
shall be prima facie evidence of 
negligence in a certain class of 
cases." Houston v. Brush Sb Cur- 
tis, 66 Vt. 331. The knot formed 
by the tying together of two ropes 
for a guy in a hoisting apparatus, 
having come undone during the 
lifting, resulting in an injury to an 
employee, there is a presumption 
of negligence, which the master 
who tied the knot had the burden 
of overcoming. The knot was 
tied by one of the defendants. Folk 
V. Schaeffer, 180 Pa. St. 613, 40 Atl. 
401. Proof that a railroad switch 
was open and that a train ran into 
it, whereby the engineer was killed, 
established a prima facie case of 
negligence. St. Louis, I. M. & S. 
R. Co. V. Ramsey, — Ark. — , 
131 S. W. 44. But where there is 
a reasonably possible theory of an in- 
jury consistent with the employer's 
due care in the equipment and 



operation of a machine, the mere 
happening of the aooident does not 
suffice to establish his negligence 
and liability. Beyersdoif v. Cream 
aty S. & D. Co., 109 Wis. 456. 
While the mere happening of an 
accident ordinarily is not prima 
fade evidence of negligence, yet if 
it be proved that the accident oc- 
curred by reason of a i>articular 
defect, if that defect be of a kind 
that the jury can see that there 
must have been negligence in not 
curing the defect, a prima facie 
case of negligence appears, and 
may be sufficient to fix the liability 
of the master, unless he can explain 
that as to the defect he had exer- 
cised due care. Smith v. Memphis 
& L. R. Co., 18 Fed. 304. The doc- 
trine of res ipsa loquitur was not 
applicable where it did not appear 
when or by whom a joist found in 
the wreckage of a building being 
torn down, was cut, almost sever- 
ing it, there being no presumption 
that the master failed to exercise 
due care. It was not required of 
the master to make an inspection 
for the purpose of seeing whether 
anything had been done to weaken 
the structure. Ferrick v. Eidlitz, 
195 N. Y. 248, 88 N. E. 33, 24 L. 
R. A. 837, n. s. The mere fact 
that a machine that is shown to 
have performed work properly both 
before and after an accident failed 
so to work on the particular ocoa- 
sion is not sufficient to justify a 
conclusion of negligence. Redmond 
V. Delta Lumber Co., 96 Mich. 545, 
55 N. W. 1004. 



§ 797 Ghabacteb and Sufficiency of Evidencb. 2151 



prima facie case without any direct proof of actionable 
negligence.**^ 

The doctrine is not that, in any case, negligence can 
be assumed from the mere fact of an accident and injury 
but in these cases, the surrounding circumstances which 
are necessarily brought into view by showing how the 
accident occurred, contain, without further proof, suf- 
ficient evidence of the defendant's duty and his neglect 
to perform it. When the facts and circumstances from 
which the jury is asked to infer negligence, are those 
immediately attendant on the occurrence, it is spoken 
of as res ipsa loquitur. When not immediately connected 
with the occurrence, then it is an ordinary case of cir- 
cumstantial evidence.**^ 

The doctrine of res ipsa loquitur is applied when the 
inference of negligence is required by the nature of the 
occurrence. If the entire occurrence could not have 
happened without negligence of some kind, negUgence 
is presumed, and the burden of explanation is upon the 
defendant. If proof of the occurrence shows that the 
accident might have hapi>ened from some cause other 
than the defendant's negligence, such presumption does 
not arise, and the doctrine cannot be applied.*^ 

Essential to application of doctrine that accident 
does not ordinarily occur if due care has been 
exercised. 

One of the essential elements permitting the applica- 
tion of the rule res ipsa loquitur in favor of a plaintiff. 



427. Bien y. Unger, 64 N. J. L. 
506, 46 AH. 593. The essential 
import of th&t doctrine is th&t, on 
the facts proved, the plaintifF has, 
without direct proof of negrligence, 
made oat a prima fade case. West- 
em Steel Car & Foundry Co. y. 
Cunningham, 158 Ala. 369, 377, 
48 Bo. 109. 

428. Griffin y. Manioc, 166 N. 
Y. 188, 59 N. E. 925, 52 L. R. A. 
922. 

429. Thus, where decedent was 



killed by the faUing of a scaffold 
upon which he was working with 
another. They applied seyere yer- 
tical strain to the scaffold to un- 
couple a pipe oyerhead and while 
doing so it fell. The court charged 
"under the maxim res ipsa loqui- 
tur, that the scaffold must haye 
fallen because there was something 
the matter with it", and it was held 
error. Robinson y. Consolidated 
Gas Co., 194 N. Y. 37, 86 N. B. 
805. 



2152 



Masteb and Sebvant. 



§797 



is that the accident complained of shall be of such a 
character as does not ordinarily occur where the parly 
charged with responsibility has exercised the degree of 
care and caution required by law, to avoid such an 
accident.*^ 

It is only where the structure, wall or thing which 
causes the injury is shown to be under the management 
of the defendant, and the accident is such as, in the ordi- 
nary course of things, does not happen if due care ia 
used, that the happening of the accident is prima facie 
evidence of negligence on the part of the defendant. ^'^ 

Where unusual and unexpected accident happens. 

When an unusual and unexpected accident happens 
and the thing causing the accident is in one's exclusive 
management, possession or control, the accident speaks 
for itself, is itself a witness "res ipsa loquitur", and the 
fact of the accident places on the defendant the duty of 
showing that it was not occasioned by negligence on 
his part.*** 

The accident may be of such a character and the 
circumstances may be such as to cast upon the master 
the duly of explanation. The circumstances, however, 
surrounding the transaction must be such that the negli- 
gence of the master can be deduced therefrom as a natural 
and reasonable inference. The proof to warrant such 
inference must be brought forward by him who charges 
such negligence and upon whom Is the burden of proof. 
The inference of negligence cannot be established by 
conjecture or speculation or drawn from presumption 
but must be founded upon some established fact.*" 



430. This rule does not apply 
therefore to the oase of an injury 
to an employee, a freight brake- 
man, by the derailing of a oar upon 
which he was riding. No presump- 
tion arises from the mere hap];>en- 
ing of suoh an aooident that the 
railroad has not discharged its 
obligation toward the employee. 
Hensen v. Lehigh Valley R. Co., 



194 N. Y. 205, 87 N. E. 85. 

431. Eletschka v. Minneapolis, 
St. L. R. Ck>., 80 Minn. 238, 83 N. 
W. 133. 

432. Hamilton y. The William 
Bancroft, 47 Fed. 914; MuUen v. 
St. John, 57 N. Y. 568; Western 
Trans. Co. v. Downer, 11 Wall. 129. 

433. See Pierce v. Kile, 80 Fed. 
865; Zibbel y. City of Grand Rap- 



§ 797 Chabacteb and Sufficiency of Evidencb. 2153 

Rule held not applicable to complicated machinery. 

The role of res ipsa, it has been held, cannot be applied 
to a case of complicated machinery, ^'^ but no good reason 
is apparent for distinguishing between such machinery 
and other machinery. 

Rule as applicable only where no positive proof 
exists. 

The rule of res ipsa loquitur has been held to apply 
only to injuries to a servant where the facts are not 
susceptible of direct and positive proof by living wit- 
nesses.*" 

If plaintiff produces other evidence than the mere 
fact of the accident — ^in other words, if there is any 
specific evidence, positive or circumstantial, bearing on 
the question of negligence — ^there is no necessity for the 
invocation of the doctrine of res ipsa loquitur in aid of, 
or to establish, a prima facie case.*" 

Reason for rule. 

The rule is said to have had its birth and origin in the 
law of necessity, and that the burden of disproving negli- 
gence is on defendant where the means and instrumen- 
talities employed by the master are peculiarly within 
his knowledge and under his control, and he is therefore 
in much better position to explain the cause of the acci- 
dent than is the injured party. *'^ 

Rule as applicable to master and servant 

While there are cases apparently holding that the doc- 
trine of res ipsa loquitur is inapplicable to cases between 
master and servant to recover damages for alleged negli- 

idB, 129 Mich. 650, 89 N. W. 563; 435. Klebe v. Parker DistiUin^ 

FuUer y. Ann Arbor Railroad Co., Co., 207 Mo. 480, 105 S. W. 1057. 

141 Mioh. 66, 104 N. W. 414; Bald- 436. Western Steel Car & Foun- 

win y. Atlantic City R. Co., 64 N. dry Co. y. Cunningham, 158 Ala. 

J. L. 232, 45 Atl. 810; Missouri, E. 369, 377, 48 So. 109. 

A T. R. Co. y. Crowder, 55 8. W. 437. Elebe y. Parker Distilling 

(Tex. Civ. App.) 380. Co., 207 Mo. 480, 105 8. W. 1057. 

434. Brien y. St. Louis Cooper- 
age Co., 50 Mo. App. 202. 



2154 



Mastbb and Sbbvakt. 



^797 



gence/'^ yet the better and almost universal rule is to 
the contrary. *•• 

And it is doubtful whether even the federal courts 
intend to hold that in no case is the doctrine applicable 
in an action by a servant against his master to recover 
for personal injuries. 

Statutory provisions. 

In some of the states, statutes have been enacted under 
which, in certain cases, the happening of the accident is 
itself made prima facie evidence of negligence on the 
part of the master; ^^ and such statutes have been held 



438. Northern Pao. R. Co. v. 
Dixon, 139 Fed. 737; Midland Val- 
ley R. Co. V. Fulgham, 181 Fed. 91; 
City of Greeley v. Foster, 32 Colo. 
292. See also Looney v. Metropol- 
itan R. Co., 200 U. S. 480; Norfolk 
& W. R. Co. V. Witt, 110 Va. 117, 
65 S. E. 489. 

439. Elebe v. Parker Distilling 
Co.. 207 Mo. 480. 105 8. W. 1057; 
Palmer Briok Co. v. Chenall. 119 
Ga. 837, 47 8. £. 329; Nolan v. 
Brooklyn Heights R. Co.. 68 App. 
Div. 219, 74 N. Y. Supp. 120; 
Western Steel Car A Foundry Co. 
y. Cunningham. 158 Ala. 369, 377, 
48 So. 109. The Washington oourt, 
while admitting that the dootrine 
of res ipsa loquitur, as held by the 
Federal and other oourts, is not 
ordinarily applicable to oases be- 
tween master and servant, was not 
satisfied with the reasons given for 
the distinction, and held it appli- 
cable to a case of injury, stating 
that where the employee frees him- 
self and his co-servants from fault 
and shows prima facie neglect of 
some one, the burden is thus oast 
on the master to free himself from 
fault. La Bee v. Sultan Logging 
Co., 51 Wash. 81, 97 Pac. 1104. 



440. Vicksburg & M. R. Co. v. 
Phillips, 64 Miss. 693, 2 So. 537. 
Act Cong. July 7, 1838, making 
bursting of boiler on steamship 
prima facie evidence of negligence 
applies in favor of employees. Fay 
Y. Davidson, 13 Minn. 523. Under 
the Ohio statute (sec. 3365-21) the 
burden of proof of want of knowl- 
edge of a defect in a car or loco- 
motive or of due diligence to ascer- 
tain it, is upon the railroad com- 
pany, the defect being shown and 
the injury therefrom. Baltimore 
& Ohio R. Co. V. Burns, 111 Fed. 
882. But under such statute the 
burden of proving defendant's neg- 
ligence nevertheless rests on plain- 
tiff at all times. Proof of the defect 
merely raises a prima fade case. 
Elunk V. Hocking Valley R. Co., 
74 Ohio State 125, 77 N. B. 762. 
But Alabama statute placing bur 
den on railroad company to show 
whistle was blown, etc., was held 
not applicable to suits by em- 
ployees. The statute of Alabama 
providing that, when any person is 
injured by a locomotive or cars of 
a railroad, the burden of proof is 
on the railroad company to show 
that the engineer had blown the 



§ 797 Chabaotbb and Sufficibnot of Evidencb. 2155 

constitutional. ^^^ So, in Florida and Georgia, at least 
until the amendment of the Georgia statute in 1909, a 
railroad employee suing for personal injuries, by statute, 
could throw the burden of showing the employer not 
n^ligent, on the employer, by proving plaintiff was free 
from fault.*** 

And under another statutory provision in Florida and 
Georgia, a presumption of negligence is raised against a 
railroad company when an employee is injured by the 
running of the locomotives or cars or other machinery.*** 

If the act complained of is in violation of a statute, it is 
sufficient for plaintiff to prove those facts alone which 
will bring the case within the statute.*** 

What must be proved. 

Under this doctrine, a prima facie case of negligence is 
established by showing the injury, **** or by so doing and 



whistle at certaixi timeB and plaoes, 
stopped the train for obstructions 
on the track, etc., does not apply 
to a case where an employee has 
been injured while engaged in his 
regular duty of removing cars, and 
the burden of proving that the 
company is guilty of negligence is 
on such employee. Mobile & B. R. 
Co. y. Holbom, 84 Ala. 133, 4 So. 
146. 

441. See Mobile, J. & K. C. R. 
Co. V. Tumipseed, 219 U. S. 36, 
where the provision of the Mississ- 
ippi Code of 1906 (§ 1985) that in 
actions by passengers or employees 
of a railroad company for per- 
sonal injuries, proof of injury in- 
flicted by the "running of the lo- 
comotives or cars of such company" 
shall be prima facie evidence of 
ne^^igence, is held not unconsti- 
tutional as taking property with- 
out due process of law or denying 
railroad companies the equal pro- 
tection of the law. See also Mobile, 



J. & K. C. R. Co. V. Hicks, 91 Miss. 
273, 46 So. 360, where the same 
statute was applied. 

442. Central R. & B. Co. v. 
Roach, 64 Ga. 635. 

443. Savannah & W. R. Co. v. 
PhiUips, 90 Qa. 829, 17 S. E. 83; 
Central of Ga. R. Co. v. Butler, 
8 Ga. App. 243, 68 S. E. 956. Ham- 
mer held not "machinery" within 
statute. Georgia R. & B. Co. v. 
Nelms, 83 Ga. 70, 9 S. E. 1049. 
By force of the Florida statute, 
ch. 4071, Acts 1891, a presumption 
of negligence may arise from the 
fact of an accident in the case of 
railroads, but the statute has no 
application to employees of other 
corporations and the common law 
does not authorize such presump- 
tion. Green v. Sansom, 41 Fia. 
94, 25 So. 332. 

444. See Delaski V. Northwestern 
Improvement Co., 112 Pac. (Wash). 
341. 

445. See infra, illustrative cases. 



2156 



Masteb and Sbbvant. 



^797 



eliminating negligence on the part of the servant and his 
fellow-servants for whose neglect the master is not re- 
sponsible. **• 

Evidence to rebut presumption. 

There is a class of cases holding that even where the 
facts are such as to create a presumption of n^ligence, yet 
it is completely overcome, as mattw of law, by merely 
proving by competent experts that the machine or thing 
at the time was not defective or out of repair or that 
the conditions were such as to preclude negligence. ^^^ 

In case of accident to an employee, even where the 
conditions are so obviously dangerous as to give rise to an 
inference of negligence, the master has not the burden of 
satisfactorily accounting for the accident, but merely 
of showing due care.*** 

Automatic starting of machine. 

In some cases it has been held that the automatic start- 
ing of a machine, without any apparent cause, raises a 
presmnption of a defect or of negl^ence.*** 



446. LaBee v. Sultan Logging 
Co., 61 Wash. 81. 

447. Vorbrioh v. Gender & Paes- 
chke Mfg. Co., 96 Wis. 277, 71 
N. W. 434. 

448. Spees v. Boggs, 198 Pa. St. 
112, 47 Atl. 876, 52 L. R. A. 933. 

449. A printing press, after hav- 
ing been brought to a stop, sud- 
denly started, injuring the opera- 
tor, without any well explained 
cause. The court charged that if 
the press started of its own accord 
after it had been properly stopped, 
this fact unexplained was some 
evidence of negligence on the part 
of the defendant, but immediately 
afterwards added: "If you find 
that the shipper was pushed back 
to its extreme limit in its proper 
way, then the fact that it started 
up is in itself some evidence of a 



defect somewhere, that is to say, 
of the existence of a defect about 
the machine, and some evidence of 
negligence on the part of the de- 
fendant or its superintendent, in 
allowing that defect to exist." The 
court say: "Taking the portions of 
the charge above cited, together, 
it is obvious that the judge went 
no farther than this court had al- 
ready gone in" cases cited. Cryne 
V. Boston Wooven Hose & Rubber 
Co:, 191 Mass. 40, 77 N. £. 696. 
A printing press was automatically 
started. It had never done so be- 
fore. It did not do so afterwards. 
No defect was shown. Because, 
however, the machine was second 
hand, had been used ten years, and 
there was some evidence that a 
belt might have become worn (not 
that it was worn) and this might 



§ 797 Chabacteb and Suffioibnot of Evidbncb. 2157 



So it was held prima facie evidence of negligence charge- 
able either to the master or a fellow-servant, as the case 
may be, that an engine breaks through a closed door of a 
machine shop, injuring a workman. ^^ 



eause it to slip from a loose to a 
ri^t puUey, a finding of the jury 
of negligenoe on the part of the 
master was sustained. It did not 
appear inspection would have re- 
vealed any defect, but rather the 
eontrary. Mulvaney v. Peck, 196 
Mass. 95, 81 N. £. 874. The un- 
explained automatic starting of a 
machine when it ought to remain 
at rest, is evidence of a defect (not 
evidence of negligence), and may, 
in connection with other evidence, 
establish negligenoe on the part of 
the master, as where he was charge- 
able with notice that there was 
some defect, and hence the ques- 
tion of the master's negligence be- 
came a question for the jury. A 
loom started automatically when 
at rest, and there was slight evi- 
dence that in replacing an old worn 
shaft with a new one, which had 
not at all times worked well, the 
adjustment of the new shaft to 
the old loom was made in such a 
manner that it might have been 
foreseen by one familiar with the 
mechanism that the belt was liable 
to work from the loose to the tight 
pulley. Ryan v. Fall River Iron 
Works Co., 200 Mass. 188, 86 N. E. 
310. It will be observed that the 
foregoing oases determined by the 
Massachusetts court are to the 
effect that the accidents referred 
to, were some evidence of defect, 
and not that the court determined 
that the happening of the accident 
was negii^enoe chargeable to the 
master. The same court held that 



the mere starting of a car while the 
conductor was standing on the 
fender adjusting the trolley, the 
caiise not being shown, was in- 
sufficient to establish prima facie 
negligence Of the master. Curtin 
V. Boston Elevated R. Co., 194 
Mass. 260, 80 N. E. 522. Where 
an engine left a side track with no 
one upon it, suddenly started, the 
cause not being ascertained, there 
being some evidence that the 
throttle was worn, the question of 
the company's negligence was held 
to be for the jury. Maryland D. 
& V. R. Co. V. Brown, 109 Md. 304, 
71 Atl. 1005. A finding that the 
superintendent whose duty it was 
to make necessary repairs of ma- 
chines in a thread factory, was neg- 
ligent in not reiMuring or improp- 
erly repairing a winding machine, 
was authorized from the fact that 
after it had been stopped with the 
lever, it started of itself after he 
said he had repaired it on notice 
that it was so acting. Gregory v. 
American Thread Co., 187 Mass. 
239, 72 N. E. 962. The automatic 
creeping of a driving belt on a 
carding machine from one pulley to 
another so as to start the machine, 
affords sufficient evidence that the 
machine is out of order and the 
master has been negligent in fail- 
ing to inspect the same. Petraca v. 
Quidneck Mfg. Co., 27 R. I. 265, 
61 Atl. 648. 

450. Totten v. Pennsylvania R. 
Co., 11 Fed. 564. 



2158 



Masteb and Sebvakt. 



§797 



In Texas, the mere fact that a machine, when at rest, 
started automatically was held sufficient to establish 
negligence of the master, it not appearing at the trial what, 
if any, defect existed which caused the machine to move.^*^ 

But where an employee was injured while removing 
waste from under a machine by the machine suddenly 
starting, the belt slipping from the loose pulley to the 
tight pulley, and no person was able to point with cer- 
tainty to the cause of the transfer of the belt from the 
loose pulley to the tight pulley, if in fact it was so trans- 
ferred, and no si>ecial defect in the situation or con- 
struction of the machine was pointed out, it was held that, 
because the machine started on this and three other occa- 
sions, the jury had no right to infer that there existed a 
defect of some kind which the defendant was negligent in 
not providing against, and a nonsuit was therefore pro- 
per.*** 

So where the die of a stamp press came down without 
pressure upon a lever which controlled it, there being no 
evidence as to any particular defect which caused it, it 
was held that an oi>erator injured thereby could not re- 
cover of the employer on the ground of failure of duty 
on the part of the latter. *•• 

Collision between trains. 

The fact of a collision between trains has been held evi- 
dence of negligence.'*** 



461. Gulf, C. & 8. F. R. Ck). v. 
Hayden, 29 Tex. Civ. App. 280, 
68 S. W. 630. 

462. Dingley v. Star Knitting 
Co., 134 N. Y. 652, 32 N. E. 36. 

463. Sargee v. Clark Can Co., 
126 Mioh. 608, 86 N. W. 1106. 

464. See Illinois Cent. R. Co. 
V. Vaughn, 33 Ky. L. Rep. 906, 
111 S. W. 707; Jamnssi v. Missouri 
Pao. R. Co., 166 Fed. 664 (where 
employees responsible therefor all 
yioe-prinoipals, by statute); Choc- 
taw, O. & G. R. Co. V. Doughty, 



77 Ark. 1, 91 S. W. 768; Pittsburgh, 
C. C. & St. L. R. Co. V. Campbell, 
116 111. App. 366; Shuler v. Omaha, 
K. C. & £. R. Co., 87 Mo. App. 
618; Stewart v. Raleigh & A. Air 
line R. Co., 141 N. C. 263, 63 
S. E. 877. Where a motorman, 
while on the platform of his oar, 
was killed by his car colliding with 
a oar ahead of his car, standing on 
the track, not lighted <at the time, 
the platform of his oar being 
crushed, it was held that from the 
eyidence the jury might find that 



§ 797 Chabaoteb and Sufficibnct of Evidence. 2159 

On the other hand, it has been held that evidence 
merely showing a collision is not sufficient to prove neg- 
ligence of the engineer in charge of the colliding train ;^^* 
and that the mere fact of a collision of trains does not 
establish a presumption of negligence on the part of the 
railroad company in favor of its employees, such a pre- 
sumption existing only in favor of passengers. ^^* 

Derailment of engine or train. 

It was held that the mere fact of derailment of an en- 
gine, in the absence of explanation, raises a presumption 
of negligence against the company. *^'' 

So where a train became derailed by the sliding out of a 
newly made embankment, the fact that the embankment 
thus moved was held presumptive evidence that it was 
not properly constructed or completed for use. *•• 

And in North Carolina it was held that a collision or 
derailment of a train causing injury to an employee, 
raises a presumption of negligence on the part of the rail- 
road company, and casts on it the burden of proving that it 
was not negligent, notwithstanding the injury might have 
been caused by the negligence of a fellow-servant. ^^* 



the platform was old and rotten 
and the master had failed in its 
duty of inspection and repair. 
Witnesses testified that they ex- 
amined the platform after the ao- 
cident and found the wood to be 
decayed. Hegman v. Jersey City 
H. & P. St. R. Co., 77 N. J. L. 
310, 71 Ail. 1123. Where four 
cars released in some manner not 
appearing, collided with a ten- 
der, injuring an employee thereon, 
which is the ordinary course of 
things would not happen if those 
in charge of them had used due 
care, it raises an inference of neg- 
ligence, though the brakeman's 
testunony was to the effect that 
he set the brakes. Olson v. Great 
Northern R. Co., 68 Miim. 155, 

71 N. W. 6. 

3 M. ft S— 12 



455. Alabama Great Southern 
R. Co. V. Brock, 161 Ala. 351, 49 
So. 452. 

456. Smith v. Missouri Pac. R. 
Co., 113 Mo. 70, 20 S. W. 896. See 
also Southern Ind. R. Co. v. Baker, 
37 Ind. App. 405, 77 N. E. 64. 

457. Galveston, H. & S. A. R. 
Co. V. Worth, 53 Tex. Civ. App. 
351, 116 S. W. 365. 

458. Farmers Loan & Trust Co. 
V. Toledo, A. A. & N. M. R. Co., 
67 Fed. 73. 

469. Wright v. Southern Ry. 
Co., 127 N. Car. 225, 37 S. B. 221; 
Marconi v. R. Co., 126 N. C. 200, 
35 S. £. 423. See also HemphiU 
V. Buck Creek Lumber Co., 141 
N. C. 487, 54 S. E. 420. 



2160 Masteb and Sebvant. §7^7 



But where there was no direct evidence that a raQ of a 
track was displaced by or the result of the acts of the 
section men, and there was evidence to the contrary, and 
the reasonable inference from the conditions as found 
upon examination after the accident, was that the dis- 
placing of the raU was the malicious act of a stranger, a 
direction of a verdict for defendant in an action by an 
employee to recover for injuries by the derailment of a 
train at such place, was proper. ^^ 

So it has been held that testimony that there was a de- 
fect in the track and that an injury occurred, is not enough 
to warrant a recovery. It is necessary to prove that the 
company knew of the defect or that it was of such a 
nature and had existed for such a length of time that 
in the exercise of ordinary care it should have been 
discovered by the company.*** 

And the federal courts hold that the mere fact of the 
derailment of a train is not sufficient evidence of n^li- 
gence on the part of a railroad company or its em- 
ployees. *•* 

Injuries caused by falls or breaks. 

A very common class of cases in which the doctrine of 
res ipsa loquitur is sought to be applied are those where 
an appliance breaks and causes the injury, or where some- 
thing falls and injures a servant, whether caused by a 
break or otherwise. As to these cases, it seems impossible 
to lay down any rule in addition to the general rules al- 
ready stated, and it is impossible to reconcile them. 

Under this doctrine, it is held in some courts that if a 
master furnishes his servant with an instrument with 
which to do his work and directs him to do it in a par- 
ticular manner, and while so doing it breaks, the burden 
is on the master to show that the instrument was suitable 
for the purposes for which it was intended, and that any 

460. Cotter v. Alabama G. S. R. v. Tindall, 57 Kan. 719, 48 Pao. 12. 
Co., 61 Fed. 747. 462. Chicago & N. W. R. Co. y. 

461. Atchison, T. & S. F. R. Co. O'Brien, 132 Fed. 503. 



§ 797 Chabaotbb and Sufficiency of Evidbncb. 2161 



defect therein was unknown to the master, and by reason- 
able diligence could not have been discovered by him.**' 

In other jurisdictions, the mere breaking of an instru- 
mentality furnished by the master is not of itself sufficient 
to shift the burden of evidence on to defendant. ^^^ 

The rule of res ipsa has been applied in some cases 
where the cause of injury was the breaking of an appli- 
ance, ^^^ while in other cases it was held that no inference 
of negligence arose. ^** 



463. Labee v. Sultan Logging 
Co., 51 Wash. 81. 

464. Groen y. Sansom, 41 Fla. 
94, 25 So. 332. 

465. The mere faot that part 
of a machine broke, while plain- 
tiff was operating it in a reasonable 
way and for the use for which it 
was intended, is evidence that the 
machine was defective. Hannon 
V. American Steel & Wire Co., Id3 
Mass. 127, 78 N. E. 749. And it 
was stated in another case that 
if an implement, the breaking: of 
which is attended with danger, 
breaks, in the proper use of it for 
the purpose for which it was de- 
signed, this "is some evidence" 
that the implement was defective 
in the sense that it was not safe or 
suitable for the use to which it 
was put. "Its use in its unsafe 
condition may or may not be due 
to the negligence of its owner." 
Coleman v. Mechanic's Iron Foun- 
dry Co., 168 Mass. 254, 46 N. E. 
1065. That a team ran away with 
the wagon pole attached, which 
had become broken, there being 
some evidence tending to prove 
that the breaking of the pole was 
caused by imperfect welding of 
the iron by which the pole was at- 
tached to the wagon, that the work 
was done by defendant's servants 



in its blacksmith shop, was held 
sufficient to establish prima facie 
negligence. Gorman v. Hand 
Brewing Co., 28 R. I. 180, 66 Atl. 
209. The fact that a band for 
rigging the hoisting boom to the 
mast of a vessel was made of old 
wire rope and broke when under 
less than one-tenth of the strain 
it was designed to stand, was suffi- 
cient evidence of its defective con- 
dition and to charge the ship with 
liability. Neptune Steam Nav. 
Co. V. Borkman, 118 Fed« 420. 

Bbake chain bbbaking. It 
appearing that a brakeman was 
thrown from a car while setting a 
brake, by the breaking of the chain, 
a prima facie case of negligence was 
thereby established against the 
company. Galveston H. & 6. A. 
R. Co. V. Harris, 48 Tex. Civ. App. 
434, 107 S. W. 108. 

Chain bbbaking. The breaking 
of a chain, a part of the tackle of a 
vessel, while unloading a bed plate 
weighing twelve tons, was pre- 
sumptive evidence of negligence in 
furnishing a defective appliance. 
The Schooner Robert Lewers Co. 
V. Kekanaha, 114 Fed. 849. 

PLATFOBli IN lilNB falling. The 

fact that a stuU or platform across 
a narrow fissure in a mine fell and 
timbers thereof were found broken, 



2162 



Masteb and Sebvakt. 



§797 



The fact that a rope which was being used broke was 
held to be prima facie evidence of negligence on the part of 
the employer. Yet an instruction that the burden shifted 



was sufficient to send the question 
of the duty of the master in re- 
spect to its construction to the 
jury. There was a dissent by one 
of the judges. Westland v. Gold 
Coin Mines Co., 101 Fed. 59. 

Pullet breaking. Where a 
wooden pulley, constructed by the 
defendant, broke, the pieces flying 
in different directions, and death 
resulted to an employee, and there 
was evidence tending to show it 
was properly constructed, and there 
was no evidence that such pulleys 
wore used by others, it was a 
question for the jury whether the 
master had failed in its duty in 
using it. Wabash Screen Door Co. 
V. Black, 26 Fed. 721. 

Engine, footboabd on giting 
WAT. Where an employee of a 
railroad company, who was in- 
jured by falling from the foot- 
board of an engine, testified that 
the board gave way under him, and 
after the accident the board was 
found to be broken, it was held 
that it was a question for the jury 
to determine whether the board 
was unsound or insecurely fastened, 
or was broken by the plaintiff's 
fall. It was said: From the mere 
fact that the footboard gave way 
under him, as he testified, and 
presumedly the jury found it did, 
the natural if not necessary in- 
ference would be, either that the 
board had become unsound or was 
insecurely fastened; and the in- 
ference that it had become unsound 
is supported by the evidence offer- 



ed by the condition of the board 
after the accident. That condition, 
it is true, might be accounted for 
by the supposition of the defend- 
ant that the board was split by 
reason of its contact with plain- 
tiff after his fall, but that would be 
inconsistent with the plaintiff's 
testimony that his fall was caused 
by the board giving way. Between 
the conflicting theories of the acci- 
dent it was the province of the 
jury to decide, though it could only 
be done by inference. Atchison, 
T. & S. F. R. Co. V. Mulligan, 67 
Fed. 569. 

Flange on engine tbuck wheel 
bbeaking. The flange on the wheel 
of an engine truck broke and the 
train was derailed. The wheel was 
of cast iron with chilled tires and 
somewhat worn. There was some 
evidence that such was not safe 
material. It was held that the quea- 
tion whether they were of safe 
material and had be^n properly 
inspected was for the jury. It was 
said that a presumption necessarily 
arises from the fact that the flange 
broke that the wheel was defective 
for the use to which it was put. 
Texas & P. R. Co. v. Wimland, 
102 Fed. 673. 

Handle to abh bag on vessel, 
bbeaking. An ash bag used upon a 
vessel fell, injuring a servant in 
the hold. The mere fact that the 
handle broke was evidence that it 
was weak and defective and suffi- 
cient to overcome the general testi- 
mony in the case to the effect that 



§ 797 Chabaoteb and Stjffioibnoy of Evidence. 2163 



upon the defendant, to show by a clear preponderance 
that he used proper diligence to ascertain defects in the 
rope, was held improper. The jmy should have been 



the bag was soimd. McDowell v. 
The France, 53 Fed. 843. 

Labdsb round, bbbaking. It 
was stated: "The accident having 
occarred from defective appliances, 
the defendant must show that in 
the selection and operation of the 
machinery which caused or con- 
tributed to the accident, it used 
due care, prudence, skill and 
watchfulness." This was said 
where a conductor was injmred by 
the breaking of a round in a ladder 
upon a car, no proof having been 
offered as to knowledge on the 
part of the company of the defect 
or the length of time it had existed, 
or that it was patent. Goodman v. 
R. & D.R.Co.,81 Va. 576. Ck)ntra, 
see Patton v. IlUnois Cent. R. Co., 
179 Fed. 530; Drum v. New Eng- 
land Cotton Yam Co., 180 Mass. 
113, 61 N. E. 812. 

466. Green v. Southern R. Co., 
72 8. C. 398, 52 S. E. 45; Brooks 
V. Louisville & N. R. Co., 24 Ky. 
L. Rep. 1318, 71 S. W. 507. Where 
a brake chain parted, or something 
gave out, so that the brake wheel 
suddenly turned with a brakeman 
and threw him from the car. An 
inference of negligence did not 
arise. Sack v. Dolese, 137 111. 129, 
27 N. E. 62. The mere fact of the 
breaking of a cable used in hoist- 
ing and lowering a car upon an 
incline, is not of itself sufficient 
evidence that it was not fit for the 
use intended, nor of negligence 
on the part of the master. Hennig 



V. Globe Foundry Co., 112 Mich. 
616, 71 N. W. 156. So as to a 
pulley. Dimtley v. Inman, Poulsen 
& Co., 42 Greg. 234, 70 Pac. 529, 
59 L. R. A. 785. So where handle 
bar on hand car broke. Howard 
V. Missouri Pac. R. Co., 173 Mo. 
524, 73 S. W. 467. The general 
rule as to proof of the accident 
not being proof of negligence was 
applied where a oar wheel broke 
from some cause miknown, the 
track being in good order and free 
from defects. Morrison v. Phillips 
& Colby Const. Co., 44 Wis. 405. 
Where a servant was injured by 
the breaking of a chain used in 
raising a wrecked and derailed car, 
it was said: The mere fact of the 
breaking of the chain is not suffi- 
cient to authorize the inference or 
presumption that the master had 
failed to exercise reasonable care 
in its selection. Brymer v. Southern 
Pacific R. Co., 90 Cal. 496, 27 
Pac. 371. See Morton v. Railway 
Co., 81 Mich. 423, 46 N. W. 111. 
Where an employee was injured on 
account of the breaking and falling 
of a clamp, to which was attached 
the guy rope of a derrick, there 
being no proof that the clamp was 
made of defective iron, or that 
it was defectively made, or not 
properly maintained, and no proof 
as to the cause of its breaking, no 
inference of negligence on the part 
of the master was properly per- 
missible. Welsh V. Cornell, 168 
N. Y. 608, 61 N. B. 891, 



2164 



Masteb and Sebvant. 



§797 



told that it was incumbent upon the defendant to ex- 
plain. ^'^ 

Where the cause of an accident was the falling of some 
object, the doctrine of res ipsa has been applied in some 
cases, ^^^ while in other cases the mere evidence of the 



467. Puget Sound Iron Co. v. 
Lawrence, 3 Wash. Ter. 226, 14 
Pao. 869. 

468. Where an employee was 
killed while opening a oar door 
by a bale of ootton falling upon 
him, it was held by a divided court 
that the maxim res ipsa loquitur 
applied. Chamberlain v. Southern 
R. Co.. 169 Ala. 171, 48 So. 703. 
Applied to fall of brick arch (Chen- 
all V. Palmer Brick Co., 119 Ga. 
837, 47 S. £. 329); faU of barrel 
from platform (Armour v. Golko- 
wska, 95 m. App. 492); fall of 
drum or post used in repairing 
boom (Sackewitz v. American Bis- 
cuit Mfg. Co., 78 Mo. App. 144); 
fall of crowbar (Johnson v. Met- 
ropolitan St. R. Co., 104 Mo. App. 
688, 78 S. W. 276). The fall of the 
walls of a coal shed, about a month 
subsequent to its erection, was held 
sufficient to warrant a jury in 
finding not only that it was im- 
properly constructed, but that the 
master was chargeable with knowl- 
edge thereof. Schmidt v. J. G. 
Johnson Co., 146 Wis. 49, 129 
N. W. 667. 

Bolt falling oxtt of appliance. 
Where a split key used to hold a 
buffer iron to a bolt, came out, 
permitting the buffer to fall on 
an employee, it was held that the 
fall of the buffer was evidence of 
negligence. Sullivan v. Rowe, 194 
Mass. 600, 80 N. £. 469. Where a 
X)erson not an employee was in- 
jured while passing along a street 



under the defendant's elevated 
railroad structure by a portion of 
a broken bolt to which was attached 
an iron platefailing from such struo- 
ture upon him, and defendant 
proved that its road had been prop- 
erly constructed, and by its track 
walker and inspector, whose duty 
it was to examine all bolts and 
fastenings and keep them tight, 
that he followed instructions to 
the best of his ability, and did not 
discover the defect, and plaintiff's 
counsel asked to have defendant's 
negligence submitted to the jury 
on the ground that the fact that 
the bolt fell was presumptive evi- 
dence that the defendant was neg- 
ligent, which request was denied 
and a verdict directed for the de- 
fendant, it was held error; that the 
fact that the bolt was broken and 
part of it fell was sufficient to raise 
a presumption that, in that par- 
ticular, defendant's structure was 
out of repair and dangerous; that 
the evidence of the inspector was 
not sufficient to remove such pre- 
sumption. VoUanar v. Manhattan 
Ry. Co., 134 N. Y. 418, 31 N. E. 
870. 

Cistern wall falling. It was 
said in reference to a cistern wall 
in process of construction which 
fell, injuring a laborer engaged in 
throwing gravel behind it, the fact 
that the wall fell by its own weight 
or by the pressure of gravel and 
earth behind it, placed there by 
the defendant, raised a presump- 



§ 797 Chabaoteb and Stjffioibnot of Evidencb. 2165 



tlon of iies%Q>^<^- ^ i^ 1>^ heexx 
properly oonstruoted, it isoommon 
observation and within the oom- 
mon oourae of thinc:8, that it would 
not have fallen, therefore it was 
not properly oonstruoted; and it 
was negligently oonstruoted because 
by the ezeroise of ordinary oare and 
pmdenoe suoh well would have 
been so oonstruoted that it would 
not have fallen, but would have 
stood alone. Muloaims Admx. v. 
City of Janesville, 67 Wis. 24» 29 
N. W. 6d5. 

Coal falling fbom tender. 
Pkoof that a pieoe of ooal flew from 
the tender of a passing train, in- 
juring a seotion hand, standing a 
reasonable distanoe from the traok, 
in the absenoe of explanation, 
under the dootrine of res ipsa 
loquitur, oonstitutes sufficient neg- 
ligenoe of the company to establish 
a prima facie case, notwithstand- 
ing the evidence was to the e£Pect 
that the coal was properly loaded 
on the tender. Gulf, C. & S. F. 
R. Co. V. Wood, 63 8. W. (Tex. 
Civ. App.) 164. Contra, see An- 
derson V. Union Pao. D. & G. 
R. Co., 8 Colo. App. 521, 46 Pao. 
480. 

Dumb wArraR falling. Negli- 
gence of the master was established 
by evidence that a dumb waiter 
fell without any weight upon it, 
that one of the strands of the rope 
which supported it had frayed out, 
in connection with the fact that 
the injured party was not allowed 
to see the rope after the accident, 
and defendant did not produce it 
in court. Winkelman & Brown 
Drug Co. V. CaUaday, 88 Md. 
78, 40 AU. 1078. 

Emplotbb found unconscious. 
Where an employee was found un- 



conscious upon the floor and a 
fallen shaft and pulley was close 
beside him, such shaft having 
been in process of repair, it was 
sufficient, in the absence of any 
direct evidence as to the cause of 
the injury, to establish that his 
injuries were caused by the shaft 
and pulley falling upon him. Nor- 
folk Beet Sugar Co. v. Burnett, 
65 Neb. 400, 76 N. W. 839. 

Lumber pile falling. The doo- 
trine of res ipsa loquitur was ap- 
plied where an employee was in- 
jured while, in obedience to the 
direction of a vice-principal, he 
went to the place where injured 
by the falling upon him of a pile 
of lumber insecurely piled, the 
vice-principal having directed the 
manner in which the lumber was 
piled. Hsrdeety v. Largey Lumber 
Co., 34 Mont. 151, 86 Pao. 29. 

Roof falling. Where an em- 
ployee was killed by the falling 
of a roof while being raised, and 
there was no evidence of his neg- 
ligence nor of the cause of the fall- 
ing of the roof, it was held that the 
fact that the roof fell was sufficient 
evidence of defendant's negligence 
in executing the work to carry the 
case to the jury. It was said: In 
this case the falling of the roof 
was in and of itself some evidence 
that the work was not being done 
with ordinary care and sldll. It 
is true that the mere fact of an 
injury does not impute negligence 
on the part of any one, but where a 
thing happens which ordinarily 
would not have occurred if due 
care had been used, the fact of 
suoh happening raises a presump- 
tion of negligence in some one. 
Bamowski v. Helson, 89 Mich. 
623, 50 N. W. 989. 



2166 



Masteb and Sbbvakt. 



§797 



accident was held insufficient to make out a prima facie 
case.*** 

Thus, the fall of an elevator has been held not prima 
facie evidence of negligence.*'* 



Rack fallinq. The fact that a 
rack in a factory ooiuitruoted for 
the 8torag;e of lumber, fell when 
only half full, afforded evidence 
of the iiiBufficienoy of the rack. 
Corbett v. American Screen Door 
Ck>„ 133 Mich. 669, 96 N. W. 737. 

TllIBEB FALLING, PABT OF BUILD- 

INQ. From the mere fall of a 
timber constitutiiig a part of a 
building: or structure, provided as 
a place in which employees are to 
work, arises a reasonable inference 
that the owner and employer has 
failed in his duty either to make it 
safe or to exercise reasonable dili- 
gence and care to keep it safe, 
lipsky y. C. Reiss Coal Co., 136 
Wis. 307. 117 N. W. 803. 

469. Where an employee was 
injured by the fall of a dirt plow 
from a car, and under the charge 
of the court the jury were per- 
mitted to find from tiie fact that 
the accident occurred, without any 
evidence of negligent or unskilful 
construction of the plow, or of a 
failure to keep it in repair, that 
the falling of the plow was owing 
to the fault of the defendant, it 
was held that this was error. De 
Vauw V. Penn. & N. Y. C. & R. 
Co., 130 N. Y. 632, 28 N. B. 632. 
The mere fact that a car while 
being unloaded fell from an ele- 
vated tramway, is not proof of 
negligence in not placing guards 
along the sides of the track, nor 
is the fact that guards were sub- 
sequently so placed evidence of 
prior negligence. Barber Asphalt 



Pav. Co. v. Odasz, 60 Fed. 71. 
The doctrine of res ipsa loquitur 
held not applicable to establish 
defect in the construction of a 
window, or keeping it in repair, 
from the mere fact that the broken 
glass fell therefrom. Stewart A 
Co. V. Harman, 108 Md. 446, 70 
Atl. 333, where it is stated that 
a different rule would apply if 
whole pane had fallen out, unbroken. 
It was said mere proof that an 
accident had happened is not 
evidence of a master's negligence. 
The master is not an insurer and 
is only liable for the exercise of 
reasonable care and prudence. This 
rule applied where a servant was 
killed by the fall of an iron shutter 
of a vessel. Rende v. N. Y. & 
Texas S. S. Co., 187 N. Y. 382, 
80 N. E. 206. 

470. Elebe v. Parker Distilling 
Co., 207 Mo. 480, 105 S. W. 1057, 
where rule of res ipsa is discussed 
at length; Stackpole v. Wray, 99 
App. Div. 262, 90 N. Y. Supp. 
1045; Starer v. Stem, 100 App. 
Div. 393, 91 N. Y. Supp. 821; 
Womble v. Merchants' Grocery 
Co., 135 N. C. 474, 47 S. E. 493. 
But see Samuels v. McKesson, 113 
App. Div. 497, 99 N. Y. Supp. 294. 
Where the evidence did not show 
what caused an elevator to fall, 
the master was not liable for in- 
juries sustained by an employee 
caused by its falling. Yet it was 
held evidence was proper to 
show that the appliance had pre- 
viously shown' symptoms of in- 



^ 797 Chabaoteb and Sufficibnoy of Evidbncb. 2167 

The fall of a scaffold has been held, under some dr- 
cumstances, not prima facie evidence of negligence, ^^^ 



effidenoy or dangerous irregrulaiity 
in its operation. Casterton v. Ameri- 
can Blower Co., 142 Mioh. 407, 
106 N. W. 61. Where the fall of a 
freight elevator was oaused by the 
breaking of a large oog wheel 
through the oenter, while carrying 
a heavy load, but not beyond its 
capacity, which would not result 
from mere use or wear, this of 
itself did not show negligence on 
the part of the master, under the 
doctrine of res ipsa loquitur. There 
being no proof of a defect or of 
being improperly maintained, an 
employee injured by such fall could 
not recover. National Biscuit 
Co. V. Wilson, 169 Ind. 442, 82 
N. E. 916. See also Scott v. Nauss 
Bros. Co., 126 N. Y. Supp. 17. 
Where a freight elevator upon which 
an employee was riding fell, caus- 
ing him injury, and there was no 
evidence of defect in construction, 
other than an inference that might 
be drawn from the statement of an 
expert, that a different construc- 
tion prevailed at the time of the 
accident, there being no evidence 
that the construction was danger- 
ous in any respect or that the ele- 
vator was unsafe, negligence of the 
master did not appear. Young v. 
Mason Stable Co., 193 N. Y. 188, 
86 N. B. 15, 127 Am. St. Rep. 939, 
21 L. R. A. 592, n. s. Where an 
elevator fell, and it appeared after 
the accident that one of the bal- 
ance ropes had become detached, 
the eye having slipped off the. 
book, and the weight attached to 
the opposite end, had fallen to the 
oeHar, and it was also found that 



the key or pin which held the wheel 
on the axle above, had come out, 
it was said: The sudden breaking 
or giving way of a piece of ma- 
chinery, properly constructed, is not 
sufficient to justify the conclusion 
of negligence. Machinery so con- 
structed often gives way from 
some unknown cause or hidden 
defect. The fact that once before 
it had descended in a manner 
similar to that in the present case 
is not evidence that it was out of 
repair, as in that case the accident 
may have resulted from a failure 
to set and lock the brake. Robin- 
son V. Wright & Co., 94 Mich. 
283. The fact that an elevator 
gate fell by reason of its failing to 
catch upon the hook, provided 
for that purpose, there being no 
evidence as to what was the cause, 
nor but what the appliance was in 
perfect order before and after the 
accident, was not sufficient to 
sustain an allegation of negligence 
of the master, in not keeping its 
ways, works and machinery in 
order, as required by the statute. 
Hill V. Iver Johnson Sporting 
Goods Co., 188 Mass. 75, 74 N. E. 
303. 

471. Robinson v. Consolidated 
Gas Co., 194 N. Y. 37, 86 N. B. 
805; Bergman v. Altman, 127 la. 
693, 104 N. W. 280;Pellerin v. 
International Paper Co., 96 Me. 
388, 52 Atl. 842. Where a staging 
fell by reason of the lookouts 
breaking, and there being no evi- 
dence to the effect that it was 
buQt of improper materials or was 
improper in construction, negli- 



2168 



Master and Sbbvakt. 



§797 



while in other cases the mere falling has been held to raise 
a presumption of negligence. ^^* 

Explosions. 

Evidence of an explosion has, in some cases, been 
held of itself to constitute a prima facie case of negli- 
gence,*^* but in most cases the contrary has been held.*^* 



genoe of the master was not shown. 
Bergman v. Altman, 127 la. 693, 
104 N. W. 280. 

472. Where a soafTold provided 
by the master for a servant's use, 
falls, and no other cause of the 
fall is ascertained except as in- 
ferred from the fall itsdf , the fall 
is prima facie evidence of the 
neg1ig:ence of the master in an 
action by the servant to recover 
damages, received in consequence 
thereof. Where the cause of the 
fall is otherwise ascertained, sees. 
18 and 19 of the Labor Law (Laws 
1897, ch. 415) enlarge the duty of 
the master, and extend it to re- 
sponsibility for the safety of the 
soafiFold itself, and thus the want 
of care in the details of its con- 
struction. Stewart v. Ferguson, 
164 N. Y. 653, 58 N. E. 662; Solarz 
V. Manhattan R. Co., 155 N. Y. 
645, 49 N. £. 1104; Green v. Banta, 
97 N. Y. 627. The doctrine of res 
il>sa loquitur was applied to the 
fall of a scaffold, furnished as a 
completed appliance. Cleary v. 
General Contracting Co., 53 Wash. 
254, 101 Pac. 888. 

473. It was held that the fact 
of an explosion of a steam tank 
raised a presumption of negligence 
which the defendant was required 
to negative. Allerton Packing Co. 
V. Egan, 86 m. 253. But a gasoline 
explosion on a sleeping car in which 
plaintiff and a f ellowHservant were 



cleaning carpets does not raise a 
presumption of negligence. Wae- 
danz V. Chicago, B. & Q. R. Co., 
151 HI. App. 198. 

474. Texas & Pac. R. Co. v. 
Barrett, 166 U. 8. 617; G. A. Duer^ 
ler Mfg. Co. v. DuUnig, 83 S. W. 
(Tex. Civ. App.) 889; Omaha 
Packing Co. v. Murray, 112 III. 
App. 2^3. The mere fact that a 
steam drum exploded is not suffi- 
cient evidence of negligence. An 
employee injured must further show 
a failure of duty on the i>art of the 
master to exercise reasonable care 
to make and keep the drum in 
safe condition. Leakage in such 
drum having been discovered a 
short time previous to the explo- 
sion, and no examination having 
been made to discover its cause, 
the inference was indulged that 
the bursting of the drum was at- 
tributable to its having become 
weakened from some cause, which 
there was some evidence tending 
to show might have been the cause 
of the leakage, and hence the master 
had failed in the duty of making 
proper inspection. In re Cali- 
fornia Nav. & Imp. Co., 110 Fed. 
670. The cause of an explosion of 
a steam oven, not being shown, and 
the inference being as consistent 
with want of care on the part of 
the engineer who was injured, as 
of a defect, none being found, it 
was held there was no ground for 



§ 797 Charactbb and Stjpficibncy of Evidbncb. 2169 



Thus, it has been held that the explosion of a boiler in a 
steamboat, injuring an employee, is presumptively caused 
by negligence on the part of the employer. ^''^ 

On the other hand, it has been that the mere fact of the 
explosion of a steam boiler does not raise a prima facie 
presumption of negligence on the part of the master. ^^^ 

The doctrine of res ipsa has been held inapplicable 
where the controller on a street car exploded. *'''' 

It being a fact that nitroglycerine exploded spon- 
taneously, and there was evidence which tended to show 
that where properly naade and pure it will not thus explode, 
but might in case it was impure, it was a question for the 
jury if such was a fact, and if so a presumption that the 
explosion arose from impurity followed. *^* 

But where it has been shown that a co-employee of 
plaintiff was in the habit of permitting gasoline to drip 
from the burner of his machine after it had been extin- 
guished, and that enough gas had been formed in the 
room in that way to account for an explosion, there could 
be no presumption from the fact of the explosion that 
there was any defect in the apparatus supplying the 
gasoline.*^* 



apart. 

The fact that a freight train broke apart when it 
ought not to, is some evidence of negligence for which a 



recovery against the master. Cuin- 
mings Y. Master & Wardens of 
Grand Lodge of Masons, 195 Mass. 
348, 81 N. E. 189. An explosion 
having occurred in a machine used 
in manufacturing fire works, no 
defect therein or cause being shown, 
the doctrine of res ipsa loquitur 
was held not applicable. Thomp- 
son V. National Fireworks Ck>., 195 
Mass. 327, 81 N. £. 256. 

475. Powey v. Schoville, 10 
Fed. 140. The explosion of a 
steam boiler, whether in control of 
the owner, his employees, or 
chartered to others, is presumptive 



evidence of its unsafe condition 
or that it was not properly man- 
aged. Rose V. Stephens & Condit 
Trans. CJo., 11 Fed. 438. 

476. Huff V. Sustin, 46 Ohio St^ 
386. 21 N. E. 864; Toledo, W. & W. 
R. Co. V. Moore, Admx., 77 111. 
217. 

477. Beebe v. St. Louis Transit 
Co., 206 Mo. 419, 103 S. W. 1019. 

478. Bradford Glycerine Co. v. 
Eizer, 113 Fed. 894. 

479. Murbach v. Wisconsin 
Chair Co., 108 Wis. 57, 84 N. W. 
36. 



2170 



Mastsb and Sbbvant. 



§797 



railroad company would be liable in a suit brought by 
one not an employee, but if nothing more appears it does 
not indicate negligence for which it is liable to one of its 
employees. ** 

Wreck of train. 

There is no presumption of negligence on the i)art of a 
railroad company from the fact that a wreck has occurred 
and an employee was injured. ^^^ 

Cave in. 

The mere fact of the caving in of a noine raises no 
presumption of negligence. The burden is still upon the 
plaintiff to show failure of duty on the part of the mas- 
ter. «« 

Box on hand car striking platform. 

The fact that a box placed on a hand car by order of 
the foreman, and on which he is standing to hold it on, 
struck a station platform as the car was passing, throwing 
and injuring one of the employees, of itself makes out a 
prima facie case of negligence, which it devolves upon the 
defendant to meet.*'* 



480. Young v. Boston & Maine 
R. Co., 168 Mass. 219, 46 N. E. 
624. But see, in same state, ap- 
parently to the contrary so far 
as the breaking of an appliance is 
concerned, Hannon v. American 
Steel & Wire Co., 193 Mass. 127, 
78 N. E. 749; Coleman v. Me- 
chanics' Iron Foundry Co., 168 
Mass. 254, 46 N.E. 1066. Wherea 
train pulled apart, there being no 
direct evidence that the key holding 
the steam was defective, but there 
was evidence that if it had not been 
defective it could not have pulled 
out, and also evidence that about 
a month afterwards a key was 
found near where the break oo- 
ouzred, but the fastening which 



should have been attached to it 
was not found, and evidence also 
that the car and drawhead had 
been inspected, it was held suffi- 
cient to sustain a finding that the 
company was negligent in failing 
to provide a safe key. Missouri, 
K. & T. R. Co. V. Cox, 66 S. W. 
(Tez. Civ. App.) 364. 

481. St. Louis & 8. F. R. Co. v. 
HiD, 79 Ark. 76, 94 S. W. 914. 

482. Mountain Copper Co. v. 
Van Buren, 123 Fed. 61; City of 
Greeley v. Foster, 32 Colo. 292, 
299. 

483. Louisville & N. R. Co. v. 
Northington, 91 Tenn. 66, 17 S. 
W.880. 



§ 797 Chabaoteb and Sxtffioibkct op Evidbncjb. 2171 

Shock received by operator of telephone exchange. 

Where an injury (shock) was received by an operator 
at a telephone exchange, and in an action brought there- 
for the company offered no explanation concerning the 
accident, which the jury could have found was of such a 
nature that it would not have occurred unless the com- 
I)any had permitted the apparatus to become defective, 
the company could not, in support of a verdict directed 
for it, maintain that the injury might have been caused by 
the negligence of fellow-servants, or of the failure of the 
chief operator or of the switch board inspector to perform 
their duty, or that a workman had carelessly repaired 
the apparatus. If the shock was caused either by the 
want of repair or of a proper adjustment of the different 
parts, the question of defendant's negligence was for the 
jury.*** 

484. Cahm ▼. New England Tel. 
& Tel. Co., 190 Mass. 421, 79 
N. E. 821. 



2172 Master and Sbbvant. §798 



BOOK V. 



PROCEDURE. 



Chapter 

I. Time to sub, § 798. 
II. Parties, §§ 799-801. 

III. Notice before brinqinq sxht, §§ 802-819, 

IV. Pleading, §§ 820-856. 



CHAPTER I. 



time to sue. 



§ 798. What law governs. 

In determining whether the time to sue has elapsed, 
it is necessary to consult the general statutes of limitation 
in force in the state which fix the time to sue from one 
year in some states to six years in other states; and it is 
also necessary, if the right to recover is dependent on a 
statute, to observe if such statute itself fixes a time 
within which the suit must be brought, since if it does it 
determines the period of limitations in such a case rather 
than the general statute. For instance, in several of the 
states which have adopted Employers' Liability Acts the 
statute itself fixes the time to sue, so that if the action is 
one where the rule of fellow-servants would be a defense 
but for the statute, and the statute is relied on, the action 
must be brought within the time fixed by such statute 
which is generally less than the time within which an ac- 
tion based on a common law cause of action may be 
brought. Thus in Massachusetts and some other states, 
the time to sue is limited by the Employers' Liability 
Act to one year. 



^ 799, 800 



Pabties. 



2173 



CHAPTER IL 



PARTIES. 



Seo. 
799. 
800. 



In fipeneiBl. 

Joinder of master and ne^ 
ligent aervant as defend- 
ants. 



Seo. 

801. Who may sae where injured 
servant dies. 



§ 799. In general. 

The rules relating to proper and necessary parties in 
actions for personal injuries caused by negligence apply 
where the parties are employer and employee the same as 
if the action was by one having no contract relations with 
defendant. The action is one ex delicto notvdthstanding 
the duty violated by the master is one imposed by the 
contract of employment. 

§ 800. Joinder of master and negligent servant as de- 
fendants. 

The general rule is that where the negligence was that of 
another servant, plaintiff may join as defendants the 
employer and the negligent servant;^ and it makes no 
difference that the liability of the master is imposed by 
statute while the liabiUty of the negligent servant is 
imposed by common law.' 



1. Republic Iron & Steel Co. ▼. 
Lee, 227 m. 246, 81 N. E. 411; 
Southern R. Co. v. Griszle, 124 
Ga. 735; Coalgate Co. v. Bross, 
25 OUa. 244, 107 Pao. 425; Morri- 
son T. Northern Pao. R. Co., 34 
Wash. 70, 74 Pao. 1064; Howe v. 
Northern Pao« R. Co., 30 Wash. 
569, 70 Pao. 1100, 60 L. R. A. 949; 
Alabama Great So. R. Co. v. 
Thompson, 200 U. 8. 206; Charman 
▼. Lake Erie & W. R. Co., 105 



Fed. 449. Contra, see Parsons v. 
Winchell, 5 Cush. 592; Mulohey v. 
Religious Soo., 125 Mass. 487; 
Clark V. Fry, 8 Ohio St. 358, 377; 
Campbell ▼. Sugar Co., 62 Me. 
553; Bailey v. Bussing, 37 Conn. 
349; Page v. Parker, 40 N. H. 47, 
68; Beuttel ▼. Railway Co., 26 
Fed. 50. 

2. Southern R. Co. ▼. Miller, 
1 Ga. App. 616, 57 S. E. 1090. 



2174 Masteb and Sebvant. ^801 

There is no question, however, that where the negli- 
gent act complained of was, in fact or by legal intend- 
ment, the joint act of the employer and co-servant, they 
can be jointly sued.' 

But it is not necessary to join them as defendants since 
it is proper to sue the employer alone or to sue the neg- 
ligent servant alone. If the joinder is proper, plaintiff 
cannot be compelled to elect as to which defendant he 
shall proceed against.^ 



§ 801. Who may sue where injured servant 

If the injured servant dies, the general statute prevail- 
ing in probably every state and authorizing a recovery for 
death resulting from negligence, should be consulted, 
and also, in some states, the Employers' Liability Act 
which makes special provisions. Sometimes there may 
exist a choice between suing under the general death act 
and under the Employers' Liability Act, and in such case 
the fact that the damages are restricted in amount by 
one and not the other statute, or more restricted by one 
statute than the other, is to be considered.'^ 

Under some statutes, such as the Massachusetts 
Employers' Liability Act, the person entitled to sue 
depends upon whether the injured servant was instantly 
killed or died without conscious suffering, or the reverse.* 

Whether the action shall be brought by the personal 
representatives, widow, parents, heirs, or next of kin of 
the deceased, is to be determined by the law of the state 
where the action is brought. 

3. G«lvin Y. Brown & MoCabe, 6. See MoMuiray v. St. Louis, 
53 Or. 598, 612, 101 Pao. 671. I. M. & 8. R. Co., 225 Mo. 272, 125 

4. Coalgate Co. ▼. Bross, 25 8. W. 751. 

Old. 244, 107 Pao. 425. 6. See supra — • 



^802 



Notice Befobb Bbinginq Suit. 



2175 



CHAPTER III. 



NOTICE BEFORE BRmGING SUIT. 



S60. 

802. Neoesaily for. 

Contract provisions for no- 
tice. 

Where injured servant a 
minor. 

Waiver. 

Estoppel to question failure 
to give notice. 

803. Purpose of statutes. 

804. What law governs. 

805. Complaint as notice. 

806. Necessity for writing. 

807. Time within which notice 

must be given. 

Service before action com- 
menced. 

When service by mail 
deemed complete. 



Sec. 

Extension of time. 

808. Who may or must give notice. 

809. Contents. 

Time. 
Place. 
Cause of injury. 

810. Signature. 

811. Construction. 

812. Amendments. 

813. On whom notice to be served. 

814. Mode of service. 

815. Demand for further notice. 

816. Effect of mistakes or defects in. 

817. Effect of notice. 

818. Raising objection on trial. 

819. Federal courts follow state 

decisions. 



§ 802. Necessity for. 

In Colorado, Kansas, Massachusetts, New York, and a 
few other states, the fellow-servant statute requires the 
service of a notice of the injury on the employer within a 
specified time after the injury. In Washington and Ore- 
gon, notice is required by the Factory Acts. In some other 
states, such as Wisconsin, a statute requires such a notice 
in all actions for personal injuries, without regard to 
whether the relation of master and servant exists.^ 

In such jurisdictions, in cases where the statute ap- 
plies, the service of such notice is a condition precedent to 
the right to sue.^ 



7. See Guile ▼. La Crosse Qsa 
A E. Co.. 146 Wis. 157, 130 N, W. 
234. 

8. Healey ▼. Geo. F. Blake 

Mfg. Co., 180 Mass. 270, 62 N. E. 
8 1&. & S.'~~~13 



270; Finneran v. Graham, 198 
Mass. 385, 84 N. E. 473; Greben- 
stein y. Stone & Webster Engi- 
neering Co., Mass., 95 N. E. 503; 
Carlin v. New York Dock Co., 137 



2176 



Masteb akd Sebvant. 



^802 



Notice of injury is not necessary, and is wholly ineffective 
if given, where the plaintiff does not rely on the Em- 
ployers* Liability Act for a recovery but intends to sue 
under the common law rule,' and it follows that it is not 
necessary where he has a remedy both under the statute 
and under the common law but does not intend to rely 



App. Div. 71. 122 N. Y. Supp. 57; 
Grasso v. Holbiook, Cabot & Daly 
Gont. Co., 102 App. Div. 49, 92 
N. Y. Supp. 101; Pohlman v. 
Chicago, R. I. & P. R. Co., 182 
Fed. 492 (oonstniing Kanww stat- 
ute); Lange v. Union Pao. R. Co., 
126 Fed. 338, 62 C. C. A. 48 (oon- 
struing Colorado statutes); Nelson 
▼. Young-Cole Lumber Co., 58 
Wash. 56, 107 Pao. 873 (immaterial 
that plaintiff is insane). Where 
there is no proof of such notice, a 
nonsuit is proper. Stahl v. Sohoon- 
maker, 84 N. Y. Supp. 239. An 
employee failing to give his em- 
ployer notice of the time, place and 
cause of injury as provided by the 
Employer's liability Act, waives 
his right to sue therefor. Cahill 
V. New England Tel. & Tel. Co., 
190 Mass. 421, 79 N. E. 821. 

9. Ryalls v. Mechanics' Mills, 
150 Mass. 190, 22 N. E. 766, 5 L. 
R. A. 667; Denver & R. G. R. Co. 
V. Norgate, 141 Fed. 247, 72 C. 
C. A. 365, 6 L. R. A. 981, n. s. 
(construing Colorado statute) ; Col- 
orado Milling & Elevator Co., 
26 Colo. 284, 58 Pao. 28 (action for 
death based on statute reiterating 
common law rule) ; Rosin v. Lidger- 
wood Mfg. Co., 89 App. Div. 245, 
86 N. Y. Supp. 49; Schermerhom 
V. Glens Falls Portland Cement 
Co., 94 App. Div. 600, 88 N. Y. 



Supp. 407. Notice of the injury 
is not necessary except where the 
action is one based on the f ellow- 
servant statute as distinguished 
from an action based on the com- 
mon law. Gmaehle v. Rosenberg, 
178 N. Y. 147, 70 N. E. 411; St. 
Louis & San Francisco R. Co. v. 
Little, 75 Kan. 716, 90 Pao. 447. 
In New York, a notice of common- 
law negligence is not required, and 
is not a notice to bring the case 
within the enlarged liability im- 
posed by the Legislature. Where 
there is no notice of any defect in 
the condition of the ways, works, or 
machinery, or of the negligence of 
any person exercising superintend- 
ence with the authority or consent 
of the employer, there is no notice 
where the employer is not a railroad 
company. Simpson v. Foundation 
Co., N. Y., 95 N. E. 10. The no- 
tice, in order to be of any import- 
ance, must cover a liability under 
the Employers' Liability Act and 
not merely a common law liability. 
Welch V. Waterbury Co., 136 App. 
Div. 315, 120 N. Y. Supp. 1059; 
Ortolano v. Degnon Contracting 
Co., 120 App. Div. 595, 104 N. Y. 
Supp. 1064; Chisholm v. Man- 
hattan R. Co., 116 App. Div. 320, 
101 N. Y. Supp. 622 (where com- 
plaint was substitute for notice). 



^802 



Notice Bsfobb Bbinginq Suit. 



2177 



on the statute,^® unless notice is required by contract. 
No notice is necessary, in New York, where the action is 
brought under the general code section relating to re- 
covery of damages for injuries from a wrongful act re- 
sulting in death ;^^ nor where the action is based on the 
labor law relating to scaffolds, etc., and not on the Em- 
ployers' liabiUty Act of 1902." 

So it has been held in New York that this statute does 
not apply to actions brought against a raUroad company 
where the statute making certain employees vice-prin- 
cipals is relied on." 

In Kansas, such a statute has been held not applicable 
where the servant was killed and the action was by the 
administrator. ^ ^ 

It has been held that a statute requiring notice to a 
municipality of injuries caused by defects in streets does 
not apply where the relation of master and servant 
exists." 

Contract provisions for notice. 

Some employers insert in their contracts of employ- 
ment a provision requiring a specified notice of a claim 
for personal injuries. Such conditions may be waived by 
the employer and no consideration is required therefor." 

A provision in a contract between a railroad and an 
employee that, in consideration of employment, the 
employee agrees to give the railroad company notice of 
I>er8onal injuries sustained by him while in the service, 
within a specified number of days after receiving such 
injuries, and that his failure to give such notice in the 
manner and within the time specified shall be a bar to an 



10. Ryalls v. Mechanics' Mills, 
suinra. 

11. Holm Y. Empire Hardwaie 
Co., 102 App. Div. 605, 92 N. Y. 
Supp. 914. 

12. Williaans v. Roblin, 94 App. 
Div. 177, 87 N. Y. Supp. 1006. 

13. Sohradin v. New York, G. 
& H. R. R. Co., 103 N. Y. Supp. 73. 



14. larussi v. Missouri Pac. R. 
Co., 155 Fed. 654, constanin^r 
Kansas statute; Philes v. Missouri 
Pac. R. Co., 141 Mo. App. 561, 
125 S. W. 553, construing Kansas 
statute. 

15. Pesek v. City of New Pla- 
gue, 97 Minn. 171, 106 N. W. 305. 

16. Missouri, K. & T. R. Co. 
y. Walker, 79 Kan. 31, 99 Pac. 269. 



2178 



Masteb and Sbbvant. 



$803 



action therefor, was held in violation of the statutory 
provision that no contracts which restrict liability shall 
be legal or binding. ^^ 

And by statute in Texas, fixrog the time for giving 
notice at less than ninety days is void.^^ 

Where injured servant a minor. 

The statutes apply where the injured employee is a 
minor as well as where he is an adult. ^* 

Waiver. 

Service of any notice at all may be waived by the 
employer by his words or acts. " 

Estoppel to question failure to give notice. 

Where a statute requires notice to be given, and an 
injured servant is induced by the master or his representa- 
tives not to serve the notice within the statutory time, the 
master is estopped from invoking the bar of the statute. *^ 

§ 803. Purpose of statutes. 

The purpose of the notice required by the statute is 
to enable the employer to make a reasonable investigation 
of the accident, and then adjust or resist the claim as he 
deems advisable. '* 



17. Munford v. Chicago R. J. & 
P. R. Co., 128 la. 686, 104 N. W. 
1135; Missouri, K. ft T. R. Co. v. 
Hudgins, (Tex. Ciy. App.), 127 
S. W. 1183. 

18. Chicago, R. I. & P. R. Co. v. 
Thompson, 100 Tez. 185, 97 8. W. 
459, holding validity of stipulation 
entered into in Indian Territory 
not governed by law of Texas where 
suit brought. Statute now applies 
only to employers other than rafl- 
road companies, the latter being 
absolutely prohibited from making 
any such contract. 

19. Hoffmann v. Milwaukee 



Elec. R. A L. Co., 127 Wis. 76, 106 
N. W. 808. 

20. Wolven v. Gabler, 132 App. 
Div. 45, 116 N. Y. Supp. 359. 

21. Guile V. La Crosse Gas & 
E. Co., 145 Wis. 157, 130 N. W. 
234. So where contract of em- 
ployment requires notice, and mas- 
ter tells employee he will do what 
is right, and servant is induced to 
believe provision of contract 
waived. Missouri, E. A T. R. Co. 
V. Hendricks* 49 Tex. Civ. App. 
314, 108 8. W. 745. 

22. Barry v. Derby Desk Co., 
121 App. Div. 810, 106 N. T. Supp. 
575. 



§§804-807 Notice Bbfobb Bbinqing Suit. 



2179 



§ 804. What law governs. 

The necessity for giving any notice at all is governed by 
the law of the state where the accident occurred, while the 
mode of service of the notice is governed by the law of the 
forum.*' 

§ 805. Complaint as notice. 

The filing of a complaint has been held equivalent to the 
giving of the statutory notice,*^ and in some states, 
including Wisconsin, this rule has been reiterated by stat- 
ute. 

In New York, however, where service of the complaint 
is not equivalent to notice, *^ and the same is true in Mas- 
sachusetts. *^ 

§ 806. Necessity for writing. 

The statutes expressly require that the notice shall be 
in writing. But it may be typewritten instead of written 
out in long hand. *^ 

§ 807. Time within which notice must be given. 

The statutes differ considerably as to the time for giv- 
ing notice, varying from thirty days in Massachusetts 
to two years in Wisconsin. ** 

Under the New York statute, the notice must be given 
within one hundred and twenty days, but if from phjrsical 
or mental incapacity it is impossible for the person injured 
to give notice within such time, he may give the same 
within ten dajrs after such incapacity is removed. If he 



23. Husted v. Misaouri Pao. 
R. Co., 143 Mo. App. 623, 128 8. 
W. C82. If no notioe is given, stat- 
ute of sbter state oannot be relied 
on. Pullman Co. v. Woodfolk, 121 
HI. App. 321. 

24. Welsh v. Barber Asphalt 
Paying Co., 167 Fed. 465, constru- 
ing Oregon statute. Filing of suit 
is equivalent to notioe in Texas, 
Missouri, K. & T. R. Co. v. Haw- 
ley, 123 S. W. 726. 



25. Johnson v. Roaoh, 83 App. 
Div. 161, 82 N. Y. Supp. 203. 
' 26. See infra, time for notioe, 
{807. 

27. Hunt V. Dexter Sulphite 
Pulp & Paper Co., 100 App. Div. 
119, 91 N. Y. Supp. 279. 

28. In Wisconsin, it was for- 
merly provided that the notioe 
must be given within one year, but 
by amendment in 1909 the time is 
now extended to two years. 



2180 



Masteb and Sebvant. 



§807 



dies without giving such notice, his executor or adminis- 
trator may give such notice within sixty days after 
his appointment. ^ 

Under this statute, if the servant dies without having 
given notice, notice must be given, by the executor or 
administrator, it is held in one case, within sixty days 
after his appointment, although one hundred and twenty 
days from the time of the accident have not elapsed, '^ 
but the contrary is held in another case. *^ 

The statute in Massachusetts is similar as to the 
excuse of incapacity,'^ and it is held thereunder that phys- 
ical incapacity, where there is mental capacity, does not 
prolong the time.** 

Service before action commenced. 

The notice must be served before the action is com- 
menced, although undoubtedly it may be served on the 
same day; but it is held that if both the service of the 
notice and the suing out of the writ occur on the same 
day, plaintiff must show that the former was done at an 
earlier hour than the latter.*^ 

If notice of the time, place and cause of injury is not 
served until after the writ is sued out in an action for the 
injury, the action cannot be maintained,** although the 



29. Where servant is insane, 
query as to whether guardian may 
give notioe. Nelson v. Young-Cole 
Lumber Co., 58 Wash. 56, 107 Pao. 
873. 

30. Randall ▼. Holbrook, Ca- 
bot & Daly Contracting Co., 95 
App. Div. 336, 88 N. Y. Supp. 681. 

31. Hoehn v. Lantz, 94 App. 
Div. 14. 87 N. Y. Supp. 921. 

32. Where an injured employee 
was in bed nearly two months after 
an injury, but most of the time he 
knew and conversed with people 
and a good deal of the time he was 
conscious, such condition was not 
sufficient to excuse the giving of 
the notice required by section 3 of 



the Employers' Liability Act, with- 
in thirty days after the aooident. 
Ledwidge v. Hathaway, 170 Mass. 
348, 49 N. E. 656. 

33. Cogan v. Bumham, 175 
Mass. 391, 56 N. E. 585. 

34. Finneran v. Graham, 198 
Mass. 385, 84 N. E. 873. 

35. Veginan v. Morse, 160 
Mass. 143, 35 N. E.451;Finnerman 
V. Qraham, 198 Mass. 586, 84 N. E. 
299; Healy v. Qeo. F. Blake Mfg. 
Co., 180 Mass. 270, 62 N. E. 270. 
Notice is necessary although action 
is commenced within time required 
for service of notice. Simersonv.St. 
Louis & S. F. R. Co., 173 Fed. 
612, construing Kansafl statute. 



^808 



NoTioE Befobb Bbinging Sttit. 



2181 



contrary is held in Texas, where the filing of the suit is 
held eqiuvalent to such notice. '^ 

When service by mail deemed complete. 

The New York statute expressly provides that service 
by mail shall be deemed to be made when the letter con- 
taining the notice would be delivered in the ordinary 
course of the -post. 

Extension of time. 

The time for service may be extended by the acts or 
words of the employer.*^ 

§ 808. Who may or must give notice. 

Where the statute makes no specific provision as to who 
shall serve the notice, it must be given by the injured 
servant or in his name, and if he dies and a notice is nec- 
essary it would seem to follow that the notice should be 
given by his i>ersonal representatives. 

In Massachusetts, the notice required to be given, 
upon the instantaneous death of an employee, may be 
given by his widow, •* or by his personal representatives. *• 

The notice cannot be given by a stranger, nor by the 
administrator of the injured servant before his appoint- 
ment, and it follows that the attorney of the i>erson af ter- 



se. Missouri, E. & T. R. Co. ▼. 
Hawl^ (Tex. Civ. App.), 123 8. W. 
728. 

37. Wolven v. Gabl6r,132App. 
Div. 46, 116 N. Y. Supp. 369. 

3& Oustafsen v. Washbum & 
Moen Mfg. Co., 163 Mass. 468, 27 
K. E. 179. 

39. The notioe leqiured by the 
statate, as amended by chapter 166 
of the Laws .of 1888, to support an 
action against an employer for the 
instantaneous death of an em- 
ployee, may be given by some one 
in his behalf within thirty day s from 
the ooourrenoe of the aoddent, or 
by the executor or administrator 



within thirty days after his ap- 
pointment. It was said that while 
adhering to the decision that the 
notioe in Oustafsen v. Washbum & 
Moen Mfg. Co., 163 Mass. 468, 
given by the widow, was sufficient, 
it seems more consistent with the 
probable intention of the legislature 
to hold also that, as an alternative, 
in the contingencies expressly men- 
tioned in the statute, notice may be 
also given by an executor or admin- 
istrator. Daley V. New Jersey Steel 
& Iron Co., 166 Mass. 1, 29 N. E. 
607; Jones v. Boston & Albany R. 
Co., 167 Mass. 61, 31 N. E. 728. 



2182 



Masteb and Ssbvant. 



^809 



wards appointed administrator cannot give such notice 
before such appointment.** 

A notice signed by a firm of attorneys, as attorneys for 
such employee, purports to be signed in behalf of such 
employee within the provision of the statute; and in the 
absence of evidence to the contrary, sufficiently shows 
that they were authorized to sign it.^^ 

So a notice signed by one retained to give the notice, 
by his stenographer, by his authority, is sufficient.^' 

§ 809. Contents. 

Notice of the (1) time, (2) place and (3) cause of the 
injury is usually required. 

The notice need not be of such technical form and per- 
fection that it satisfy the tests to be applied to a pleading, 
since in that case it would demand a skill in prei>aration 
entirely beyond the capacity of a layman.^' 

But while the notice required is not to be construed with 
technical strictness, enough must api)ear to at least show 
that it was intended as the basis of a claim against the 
defendant and was given in behalf of the person who 
brings the suit.** 

Under a statute requiring that the notice should 
''claim damages or payment" for the injuries, there need 
be no explicit claim of damages but it is sufficient that it 
appear from the notice that it was intended as a basis of 
claim. ** 

Failure to state the amount of the claim has been held 
not fatal in Kansas. ** 



40. Lukkonen v. Fore River 
Ship Bldg. Co., 197 Mass. 586, 84 
N. E. 299. 

41. Dolan ▼. Alley, 153 Mass. 
380, 26 N. E. 989. Formal proof 
of authority of attorney is uimeo- 
essary, in absence of evidence to the 
contrary. Steffe v. Old Colony R. 
Co., 156 Mass. 262, 30 N. E. 1137. 

42. Greenstein v. Chick, 187 
Mass. 157, 72 N. E. 955, where 



signature was "David BenshimoU 
per H. B." 

43. Finnigan v. N. Y. Contract- 
ing Co., 194 N. Y. 244. 

44. DriscoU ▼. aty of FaU 
River, 163 Mass. 105, 39 N. E. 1003. 

45. Carroll v. New York, N. H. 
& H. R. R. Co., 182 Mass. 237» 
65 N. E. 89. 

46. Smith v. Chicago, R. I. & 
P. R. Co., 82 Kan. 136, 107 Pao» 
635. 



§809 



Notice Bbfobb Bbinginq Suit. 



2183 



Where the servant dies, but not immediately, the notice 
need not, under the Massachusetts statute, allege that the 
intestate left a widow or next of kin who at the time of his 
death were dependent on his wages for support. ^^ 

Time. 

That the notice did not state the time of the injury has 
been the subject of no decisions in this country. It would 
seem that the hour and minute need not be stated but 
that it is sufficient to state the year, month and day on 
which the accident happened. 

Place. 

The notice must also locate the place of the accident. ^^ 
And in this respect it would seem that the notice 
should be more si)ecific than in relation to the time, al- 
though in several instances it has been held that a de- 
scription of the place, even if conceded to be insufficient, 
could not have misled the employer, and therefore was 
not a fatal defect.^* 

Cause of injury. 

Nearly all the cases where the question of the sufficiency 
of the notice has been involved relate to the statement 
of the cause of the injury.^ 



47. Hartley v. Boston ft N. 8. 
R. Co., 198 Mass. 163, 83 N. E. 
1093. 

48. Flaiu^an v. F. W. Carlin 
Const. Co., 134 App. Div. 236, 118 
N. T. Supp. 953 (holding statement 
of plaoe of injuiy as "at or in the 
vieinity of the Manhattan terminal 
of the WiUiamsburgh bridge*' in- 
sufficient); Miller v.Solvay Process 
Co., 109 App. Div. 135, 95 N. Y. 
Snpp. 1020 ("in the yard" of de- 
fendant, insoffioient). 

49. See infra, § 816. 

50. Notices held to sufficiently 
state the "cause of the injury," see 
Bertolami v. United Engineering 
& Contracting Co., 198 N. T. 71, 



91 N. E. 267; Foster ▼. B. I. 
Crocker & Co., 126 N. Y. Supp. 
1020; Palin v. Cary Brick Co., 
133 App. Div. 483, 117 N. Y. Supp. 
1072; Scott V. DiUon, 125 App. 
Div. 475, 109 N. Y. Supp. 875; 
United States G3ri>sum Co. v. 
Sliwienska, 183 Fed. 688; Pennsyl- 
vania Steel Co. V. Lakkonen, 181 
Fed. 325; Castner Electrolytic Al- 
kali Co., 154 Fed. 938; Berger v. 
Metropolitan Press Printing Co., 
55 Wash. 422, 104 Pac. 617; 
Matrusciello v. MUliken Bros., 
129 App. Div. 661, 114 N. Y. Supp. 
223; Bauregard v. Webb Granite 
& Construction Co., 160 Mass. 
201, 35 N. E. 555; Lynch v. Allyn, 



2184 



Masteb akd Sebvant. 



^809 



It is not enough to specify the time and place of the 
accident, although that would guide the employer to some 
extent in TmLkiTig an investigation, which is one of the 
objects of requiring notice. The statute in New York and 
most of the states having a like statute sayE that ''the 
cause of the injury" must also be stated, and this means 
that the accident should be so described that a person of 



160 Mass. 248, 35 N. E. 550; Don- 
ahue V. Old Colony R. Co., 153 
Mass. 356, 26 N. E. 868. See also 
Hardt v. Chicago, M. & St. P. R. 
Co., 130 Wis. 512, 110 N. W. 427. 
Notioes held not to suffioiently 
state the ^'oause of the injury,*' 
see Logerto v. Central Bldg. Co., 
198 N. Y. 390, 91 N. E. 782; Carlin 
V. New York Dock Co., 137 App. 
Div. 71, 122 N. Y. Supp. 57; Welch 
V. Waterbury Co., 128 N. Y. Supp. 
974; Thompson v. Post & McCord, 
128 N. Y. Supp. 220; Miller v. 
Solvay Process Co., 109 App. Div. 
135, 95 N. Y. Supp. 1020; Berto- 
lami v. United Engineering A 
Contracting Co., 132 App. Div. 
804, 117 N. Y. Supp. 826 [reversed 
in 198 N. Y. 71, 91 N. E. 267, where 
notice held sufficient]; Bovi v. Hess, 
123 App. Div. 389, 107 N. Y. Supp. 
1001 ; Ortolano v. Degnon Contract- 
ing Co., 120 App. Div. 595, 104 
N. Y. Supp. 1064. A notice to a 
railroad company that a brakeman 
on a certain day was injured on 
the railroad within one hundred 
yards northerly of a station named, 
by being caught between a car and 
a locomotive engine, by reason of a 
broken draw bar upon the car, 
which permitted the tender of the 
engine to run up against the end of 
the car and crush his leg, is suffi- 
cient notice of the time, place and 



cause of the injury. Donahue v. 
Old Colony R. Co., 153 Mass. 356, 
26 N. E. 868. The notice to be 
given under the provisions of said 
act is sufficient, which clearly 
states the time and place of the 
accident and redtes that the 
injured person was "thrown from 
and run over by a car on a gravel 
train and seriously injured by the 
negligent management of said train 
on the said switch by some one 
then and there in the employ of the 
city, and who was intrusted with 
and exercising superintendence over 
the work in which I was then en- 
gaged or who had charge or control 
of the switch, locomotive, engine or 
train then and there operating as 
aforesaid," with a further state- 
ment that the train, temporary 
track and switch were defective and 
unfit for use and that the injury was 
caused thereby. Coughlan v. Cam- 
bridge, 166 Mass. 268, 44 N. E. 
218. A notice to an employer that 
at a time and place named his serv- 
ant was instantly killed by the 
falling of a derrick upon him, on 
account of the same being im- 
properly or insecurely fastened, 
sufficiently states the cause of the 
injury to permit a recovery under 
this statute. Brick v. Bosworth, 
162 Mass. 334, 39 N. E. 36. 



§809 



Notice Before Bringing Suit. 



2185 



ordinary intelligence who knew nothing about it could 
understand how it happened. ^^ 

A notice, in stating the cause of injury, should with 
reasonable definiteness and completeness, in however 
informal and inartistic manner, indicate the negligent or 
wrongful misconduct of the employer really claimed to 
have been the cause of the accident, and really relied on as 
the basis of the complaint against him, that he may, by 
virtue of such seasonable notice, investigate and prepare 
to defend against the charge thereafter actually to be 
prosecuted.*^ 

Facts and not conclusions must be stated, although the 
facts need not be stated with the detail or accuracy of a 
pleading or bill of particulars.'^' 

At one time it had apparently become more or less com- 
mon in New York to set forth in the notice the legal cause 
of the injury without setting forth the facts as to how the 
injury happened, or to set forth such facts in the briefest 
manner, and sometimes a blanket form covering all the 
legal duties of a master to a servant was used, without 
setting forth the facts of the accident. Thus, a notice 
would state the time and place of the accident and then 
state the accident was caused by the failure of the em- 
ployer to furnish a safe place to work or safe appliances 
or competent co-servants or a sufficient force of servants, 
or the failure to make and promulgate rules, etc., without 
stating any facts, or make a shot gun statement that the 
injury was caused by the omission of all such legal duties, 
specifying them, without setting forth the facts. These 
were condemned and held insufficient,*^ and the rule 



51. Simpson v. Foundation Co., 
N. Y^ 96 N. E. 10. 

52. Finnigan v. Nefw York 
Ck>ntraoting Co., 194 N. Y. 244. 

53. Glynn v. New York C. & 
H. R. R. Co., 125 App. Div. 186, 
109 N. Y. Supp. 103. 

54. A notioe stating that the 
ugnries were caused solely by fail- 
ure to furnish a safe plaoe to work. 



and failure to safeguard said plaoe, 
and failure to furnish suitable tools, 
appliances and apparatus, ways, 
works and machinery in connection 
with the work the employee was 
obliged to do, and failure to prop- 
erly inspect, guard and protect 
the place where he was at work, and 
failure to furnish him with a com- 
petent foreman and co-employees, 



2186 



Mastbb and Sbbvant. 



^809 



now is in New York that the notice is sufficient if it con- 
tains an honest and fairly accurate statement of the phys- 
ical cause of the injury, without referring to the particular 
duty violated by the employer.** 

So where the notice describes with substantial accuracy 
and completeness the exact physical cause of the injuries, 
it seems that mistakes in stating the particular legal duty 



and faflure to formulate, promul- 
gate and enforce proper rules and 
reg:ulationB for the safety of em- 
ployees in the performance of 
their duties, does not comply with 
the statute; first, by reason of the 
number of independent grounds of 
negligence stated and not in any 
manner actually relied upon; sec- 
ond, because there is no statement 
which fairly and completely de- 
scribed the cause of the accident or 
disclosed the facts. Finnigan v. N. 
Y. Contracting Co., 194 N. T. 244, 
87 N. E. 424, 21 L. R. A. 233, n. s. 
It is not sui&oient to merely state 
in general terms the neglected 
duties of the master, as by stating 
that the cause of the injury was 
the defendant's negligence in fail- 
ing to furnish a safe place to work. 
(Kennedy v. New York Tele- 
phone Co., 125 App. Div. 846, 110 
N. Y. Supp. 887), or the like. 
(Galino y. Fleischmann Realty A 
Const. Co., 130 App. Div. 605, 
115 N. Y. Supp. 334; Barry v. 
Derby Desk Co., 121 App. Div. 
810, 106 N. Y. Supp. 575). A 
notice which alleges a failure to 
provide "proper protection," but 
does not point out the kind of pro- 
tection needed, nor the nature of 
the work in which the plaintiff 
was engaged, nor "indicate what 
the real, producing trouble in this 



case was as distinguished from 
many others which might have 
existed,*' although it says that he 
was struck by a bucket and caused 
to fall into a pit, but does not state 
what he was doing, why the bucket 
struck him, where he fell from, or 
under what circumstances he fell, 
is insufficient. Upon reading the 
notice, the employer could not tell 
whether something broke, or wheth- 
er the accident was caused by 
some defect in machinery, or through 
careless operation, or the failure 
to give warning, or through any 
particular act of omission or com- 
mission. The allegation of a failure 
to provide proper protection is too 
general, for that is simply an alle- 
gation of negligence, with "no 
statement which fairly and com- 
pletely described the cause of the 
accident." Simpson v. Founda- 
tion Co., N. Y., 95 N. E. 10. 

55. Valentino v. Gkurvin Mar- 
chine Co., 139 App. Div. 139, 
123 N. Y. Supp. 959. A notice 
containing a sufficiently accurate 
statement of the physical cause of 
the injury is not fatally defective 
although it fails to specify the par- 
ticular violation of the master's 
duty out of which the negligent 
cause of the injury arose. Impelliz- 
zieri v. Crauford, 126 N. Y. Supp. 
644. 



§809 



Notice Before Bbinging Sxnx. 



2187 



omitted do not render the notice insufficient,^* nor does the 
total absence of such a statement or a shot gun statement 
of the omission of all the duties owing a servant by the 
master. 

''The accident should be so identified that the master's 
attention is called to the exact occurrence/' and the notice 
"must reasonably describe the accident."*^ 

And it is very clear that a mere statement that plain- 
tiff was injured "while at work on electrical appUances" 
while at work for defendant and "has placed his case 
in my hands for adjustment" is insufficient.'^^ 

While the notice may allege different causes of the same 
accident, adequately stating each cause, ^' yet plaintiff 



56. Bertolami v. United En- 
gineerinc: & C. Co., 198 N. Y. 
71 [followed in Martin v. Walker &, 
Wmiams Mfg. Co., 198 N. Y. 324, 
where the notioe omitted to speoif y 
as the ground of negligence the 
failure to comply with section 
81 of the Labor Law]. 

57. Logerto v. Central Build- 
ing Co., 198 N. Y. 390, 394, 91 
N. E. 782. In that case the notice 
stated at length all the possible 
statutory grounds of liability, but 
the only allusion to the accident or 
cause of injury was in the state- 
ment that '*as a result of all which 
certain earth, stone and material 
was caused and permitted to fall 
upon and seriously injure me." 
It was held that this did not rei^ 
Bonably and sufficiently describe 
the aoddent or occurrence. A no- 
tice "that said injuries were caused 
. . . solely by your (the ap- 
peQant's) negligence, ... in 
that your foreman having and ex- 
ercising superintendence over and 
in connection with me, negligently 
conducted himself in connection 
with said acts of superintendence 



and negligently and without warn- 
ing started the machine in con- 
nection with which I was working, 
as a result of which I was caught 
in the gears and received the in- 
juries aforesaid," apprised the 
employer with reasonable certainty 
of the real cause of the accident. 
The material thing least identified 
was the machine on which respond- 
ent was working and in which he 
was caught. But with the other 
details which are given of time and 
place, this lack of definiteness was 
held not sufficiently serious to in- 
validate the notice, within the cases 
of Bertolami v. United Engineering 
& Contracting Co., 198 N. Y. 71, 91 
N. E. 267; Hurley v. Olcott, 198 
N. Y. 132, 91 N. E. 270; Logerto 
V. Central Building Co., 198 N. Y. 
390, 91 N. E. 782. So held in Smith 
V. Milliken Bros., 200 N. Y. 21, 
93 N. E. 184. 

58. Grebenstein v. Stone & 
Webster Engineering Co., Mass., 
96 N. E. 603. 

69. Coughlan v. City of Cam- 
bridge, 166 Mass. 268, 44 N. E. 
218, 



2188 Masteb and Sebvant. ^^ 810-812 

is not bound to ascertain and notify the defendant of all 
the causes to which the defect which occasioned his injury is 
attributed. It is sufficient if it states a cause which 
occurred, under such circumstances as would render the 
defendant responsible.^ 

A notice is not insufficient because it does not specify 
the name, grade or duties of the particular person repre- 
senting defendant and through whom it acted when 
guilty of the alleged omissions, nor because it does not state 
that the negligent employee was one acting as or exer- 
cising the duties of a superintendent;*^ and a statement of 
negligence on the part of the master is sufficient although 
in fact the negligence was that of a superintendent.*' 

In Wisconsin, it has been held that a notice is not in- 
sufficient because it does not expressly allege that the 
damage was caused by the defendant.** 

§ 810. Signature. 

The notice must be signed by the person injured or 
some one in his behalf.*^ 

The fact that a notice was produced by and in behalf 
of the plaintiff on the trial of the action is sufficient at 
least to create a presumption that it was signed by him 
or in his behalf within the meaning of the statute.** 

§811. Construction. 
The notice is not to be strictly construed.** 

§ 812. Amendments. 

Although there are no decisions on the subject, it is 
undoubtedly true that the notice cannot be materially 
amended after the suit is brought. 

60. Dolan v. Alley, 153 Mass. 64. See supra, who may or must 
380, 23 N. E. 989. give notice, { 808. 

61. Bertolami v. United En- 65.' Smith v. Milliken Bros., 
gineering & C. Co., 198 N. Y. 71. 200 N. Y. 21, 93 N. E. 184. 

62. Berube v. Horton, 199 66. Grebenstein v. Stone & 
Mass. 421, 85 N. E. 474. Webster Engineering Co., Mass., 

63. Hardt v. Chicago, M. & 95 N. E. 503; DrisooU v. City 
St. R. Co., 130 Wis. 512, 110 of FaU River, 163 Mass. 105, 
N. W. 427. 39 N. E. 1003. 



^813 NoTioB Befobb Bbinging Suit. 2189 



§ 813. On whom notice to be served. 

The New York statute provides that the notice shall be 
served on the employer, or on one of them if more than 
one; and if the employer is a corporation by deU vering or 
sending it to the office or principal place of business of 
such corporation. 

Under a statute requiring notice to be given ''to the 
employer/' it has been held sufficient to serve the notice 
on a clerk ;*^ or on a freight agent or attorney, such notices 
having been received without objection for a period of 
years/* 

Service of notice on a corporation by delivering a copy 
to the president of that company, stating that the injury 
was by being thrown from the cars of that company, is not 
sufficient to support an action against another company 
of which the same person was president, although the 
railroad had recently been leased to the latter company.^ 

Where the employer is a foreign corporation, notice 
cannot be servM, in Massachusetts, upon the commis- 
sioner of corporations made its attorney to receive service 
of legal process, and it is immaterial that the latter sent it 
to the company. ^° 

In Kansas, service of the notice on a railroad company 
may be made on one appointed by the company to receive 
service of process or by leaving a copy thereof at any 
depot or station with the railroad employee in charge 
thereof." 

Notice sent by mail to an assistant claim agent of a 
railroad whose duty it is to act on such claims is sufficient, 
where received and acted on by him.^^ 

67. Shea v. Nefw York, N. H. & 70. Healey v. George F. Blake 
H. R. Co., 173 Mass. 177, 53 N. E. Mtg. Co., 180 Mass. 270, 62 N. E. 
396. 270. 

68. De Forge v. New York, N. 71. Dowell v. Chicago, R. I. & 
H. & H. R. Co., 178 Mass. 59, P. R. Co., 83 Kan. 562, 112 Pao. 
50N. E. 669, 86 Am. St. Rep. 464. 136. Service on ticket agent is suf- 

69. Harding v. Lynn & Boston ficient. St. Louis & S. F. R. Co. v. 
R. Co., 172 Mass. 415, 52 N. E. Burgess, 72 Kan. 454, 83 Pao. 991. 
535. 72. Smith ▼. Missouri Pao. R. 

Co., 82 Kan. 248, 108 Pao. 76. 



2190 Mastbb and SBBVAirr. §§814, 815 

§ 814. Mode of service. 

The notice may be served, the New York statute 
provides, by (1) delivering it to or at the residence or 
place of business of the person on whom it is to be served, 
or (2) by mailing it to the last known place of residence 
or place of business of the employer; and if the employer 
is a corporation the delivery or mail should be to the 
office or principal place of business of the corporation. 

In Massachusetts no fixed form of service is prescribed,^' 
and the same is true in the most, if not all of the other 
states. Where the statute authorizes service by mail, 
deposit in the post office is sufficient although the notice 
is not received by the addressee.^* 

§ 815. Demand for further notice. 

The New York statute was amended in 1910,^* by 
adding the following provision: ''If such notice does 
not apprise the employer of the time, place or cause of 
injury, he may within eight days after service thereof, serve 
upon the sender a written demand for a fiurther notice, 
which demand must specify the particular in which the first 
notice is claimed to be defective, and a failure by the em- 
ployer to make such demand as herein provided shall be 
a waiver of all defects that the notice may contain. After 
service of such demand as herein provided, the sender of 
such notice may at any time within eight dayE thereafter 
serve an amended notice which shall supersede such 
first notice and have the same effect as an original notice 
hereunder.'' 

The statute makes the same provisions as to service by 
mail of the demand as are provided for as to service of the 
notice. In Massachusetts, the general statute in regard to 
a counter notice in highway cases is made applicable to 
a<3tions under the Employers' liability Act; and it is held 
that this provision that defendant must give a counter 

73. Shea v. New York, N. H. & oomes into the hands of the employer 
H. R. Co., 173 Mass. 177, 53 N. £. within the presoribed time. 
^96, holding it sufficient that notioe 74. Hurley v. Oloott, 198 N. Y. 

132, 91 N. E. 270. 



^816 



Notice Bisfobb Bbinginq Suit. 



2191 



notice within five days in order to avail himself in defense 
of any action of any ''omission" to state in the notice the 
time, place, or cause of the injury, does not apply to an 
''inaccuracy" although it consists of a want of partic- 
ularity in the description rather than a misstatement.^* 
The New York statute does not use the word "omis- 
sion" and it is submitted that it applies to insufficiency of 
description as well as a total omission to state either the 
time, or the place, or the cause, of the injury. 



§ 816. Effect of mistakes or defects in. 

A notice is not insufficient, the New York statute pro- 
vides, solely by reason of any unintentional "inaccuracy" 
in stating the time, place or cause of the injury "if it be 
shown (1) that there was no intention to mislead and 
(2) that the party entitled to notice was not misled 
thereby.'* 

But a notice cannot be saved under the provision where 
there has been no phjrsical cause stated at aU,^*^ since this 
provision protects a notice which is merely inaccurate 
in giving some detail contemplated by the statute, but 
does not excuse an utter omission to state some substan- 
tial facf 

But, under this provision, a statement of the place of the 
accident as "the village of Seneca Falls," has been held 
sufficient. '* 

It has been held in New York, under this provision, that 
the exact knowledge of the particulars of the accident, 
obtained elsewhere by the master, cures defects in the 



75. Laws 1910, o. 352. 

76. Tobin v. InhabitantB of 
BrimfLeld, 182 Mass. 117. 

76. Same rule in Maasaohu- 
•etta. Drommie v. Hogan, 153 Mass. 
29, 26 N. E. 237. 

76a. ilnnigan ▼. Nefw York 

Ck>n1zactiiig Co., 194 N. Y. 244; 

TbompBoa v. Post & MoCord, 128 

N. Y. Sapp. 220. Contra, see Millar 

T. Gamp Bird, 46 Ckdo. 569, 105 

Pao. 1105, whero only statement waa 
8 M. ft 8.— 14 



that plaintiff waa injured "in the 
left eye, on Nov. 14, 1902, in Camp 
Bird mine." 

77. Finnigan v. New York Con- 
traotbg Co., 194 N. Y. 244. 

78. Engliah y. MiUiken Bzoa., 
132 App. Div. 501, 118 N. Y. Supp. 
31. To same effect, Deon v. Mo- 
Clintio-Maxshall Const. Co., 114 N. 
Y. Supp. 28; Heffron v. Laoka- 
wanna Steel Co., 121 App. Div. 35, 
105 N. Y. Supp. 429. 



2192 



Mabtbb akd Sebvakt. 



^§ 817, 818 



notice,^* but the better rule is that where only conclu- 
sions axe stated and the duly violated by the employer, 
the notice is wholly defective and cannot be cured by this 
provision,^ i. e., that knowledge acquired by the em- 
ployer in some other way cannot cure the failure to state 
a substantial fact, such as the cause of the injury. If the 
notice is insufficient but it is claimed it was not misleading 
it seems that it devolves on plaintiff to show that there 
was no intention to mislead and that defendant was not 
in fact misled thereby, ^^ unless perhaps when it is self 
evident. 

§ 817. Effect of notice. 

Causes of the accident not enumerated in the notice 
cannot be proved,^' nor can an entirely different cause. 

But where the notice given charged negligence on the 
part of the defendant, it was sufficient to justify a recovery 
for negligence on the part of defendant's superintend- 
ent." 

If the notice states that plaintiff was in the employ 
of defendant at the time of the injury, plaintiff cannot 
claim that he was employed by a different company. ^^ 

Where the complaint is broad enough to embrace a 
common law as well as a statutory liability! the court 
may regard the notice as surplusage and submit the case 
under the common law.*' 

§ 818. Raising objection on trial. 

It has been held that failure to object by demurrer, 
answer, or otherwise in the trial court, to the want of 



79. Heffron v. Laokawaima Steel 
Co., 121 App. Div. 36. 105 N. Y. 
Supp. 2^. See also Toung ▼. 
Bradley & Son, 129 App. Div. 678, 
114 N. Y. Supp. 264. But see 
Palmieri v. S. Pearaon & Son, 128 
App. Div. 231. 112 N. Y. Supp. 684. 

80. Finnigan v. N. Y. Gont. Co., 
194 N. Y. 424 [affirming 122 App. 
Div. 712, 107 N . Y. Supp. 856). 

81. See Hughes v. RuBsell. 104 
App. Div. 144. 93 N. Y. Supp. 307. 



82. Carron v. Standard 
gerator Co., 138 App. Div. 723, 123 
N. Y. Supp. 682. 

83. Berube v. Horton, 199 Mass. 
421, 85 N. E. 474. 

84. McLaughlin v. Interorfoan 
St. R. Co., 101 App. Div. 134, 91 
N. Y. Supp. 883. 

85. O'Neil v. Manufaoturers' 
Automatic SprinMer Co., 127 N. Y. 
Supp. 692. 



$819 NoTicB BiSFOBE Bbinging Suit. 2193 

notice, waives the necessity therefor,^* although there is 
authority to the contrajy.** 

So it has been held that the want of notice need not 
be pleaded but may be urged by a motion to direct a 
verdict.*^ 
§ 819. Federal courts follow state decisions. 

The sufficiency of the notice will be determined in the 
federal courts by the law of the state in which the statute 
requiring the notice has been enacted. ^^ 

86. Welsh ▼. Barber Asphalt 88. Pennqyivaiua Steel Co. v. 

FlkTing Co., 167 Fed. 465. TAkkonen, 181 Fed. 325; United 

86. Johnaon v. Roaoh, 83 App. States Gypsum Co. v. Sliwienaka. 
Div. 351, 82 N. Y. Supp. 203. 183 Fed. 688. 

87. ShnecBon ▼. St. Louis A 
S. F. R. Co., 173 Fed. 612, 97 C. C. 
A. 618. 



2194 



Masteb and SsBVAiirr. 



CHAPTER IV- 



PLEADING. 



L GSNBBAL CONBIDEBATIONB. SOO. 

Seo. 832. 

820. Scope of chapter. 

821. Variauoe between pleadings and 

proofs. 

IL COHPLAINT. 

822. General necessary allegations. 833. 

823. Mode of stating facts. 

824. Alleging ownership or control 

of appliance or place. 

825. Alleging relation of master and 

servant. 834. 

826. Alleging that injured servant 

was acting within scope of 835. 

employment. 836. 

827. Allegation of existence of duty. 

828. Alleging negligence or breach 837. 

of duty. 

Necessity for express aver- 838. 
ment of negligence. 

Where statute makes acci- 839. 
dent itself proof of negli* 
gence. 

Alleging negligence as that of 840. 
defendant when in fact 
nefi^igenoe of servant. 841 . 

Stating name of negligent 842. 
employee. 843. 

Alleging negligent servant 
was acting within scope of 
employment. 

Alleging negligence as prox- 
imate cause of injury. 

829. Alleging knowledge on part of 

defendant. 

Sufficiency of allegation. 

830. Alleging service of notice of 

injury. 

831. Negativing defenses in general. 



Negativing assumption of risk. 
Sufficiency of allegation. 
Averment of promise to rem- 
edy defects. 
Complaint showing assump- 
tion of risk on its face. 
Negativing contributoiy neg- 
ligence. 
Knowledge or means of 

knowledge. 
Suifioienoy of aUegations. 
Negativing negligence of fel- 
low-servants. 
Alleging unsafe idace to work. 
Alleging unsafe appliances. 

Under statutes. 
Failure to warn or instruct 

servant. 
Failure to make, promulgate 

or enforce rules. 
Alleging employment or reten- 
tion of incompetent co-eerv- 
ant. 
Insufficient number of serv- 
ants. 
Employment of infants. 
Wanton or wilful negligence. 
Violation of statutes or ordi- 
nances. 
Federal interstate commerce 

act. 
Statutes as to defects in 
condition of ways, works, 
machinery, etc. 
Statute making master lia- 
ble for acts of superin- 
tendent. 
Statutory provision as to 
injury from conformity to 



§^ 820, 821 



Plbadino. 



2195 



Seo. 

orders of superior serv- 
ant. 
Statutory proyision as to 
person in charge of en- 
gine, train, ete. 

844. Pleading damages. 

845. Joinder of grounds in same 

counts. 

846. Joinder of counts. 

Election between counts. 

847. Bill of particulars. 

848. Suificiency of complaint as 

dependent on when at- 
tacked. 

849. Amendments. 

m. Anbwib. 

850. General considerations. 

851. Alleging assumption of risk. 

As distinguished from plea 



Sec 

of contributory negli- 
gence. 
SufBlciency of plea. 

852. Alleging failure of servant to 

report defects. 

853. Alleging contributory negli- 

gence. 

Sufficiency of plea. 
Causal connection. 
Violation of rules. 
Alternative aUegations. 
In connection with general 
denial. 

854. Pleading defense of fellow- 

servants. 

IV. R S P L T AND BUBSBQUSNT 
PLEADINOB. 

855. Replication or reply. 

856. Rejoinders. 



I. QbNERAL CONSIDERATIONS. 

§ 820. Scope of chapter. 

It is not within the scope of this work to consider in 
detail the rules of pleading applicable to actions in gen- 
eral but only in so far as they are peculiarly applicable 
to actions by a servant against his master to recover dam- 
ages for personal injuries. For instance, it is unnecessary 
to state that a pleading is subject to attack where it is 
indefinite or uncertain, argumentative duplicitous, etc.; 
that surplusage is not fatal; that certain defects may be 
cured by verdict, etc. So the general rule that it is neces- 
sary to state facts and not mere conclusions need not be 
commented on. 

So the general rules relating to amendments are applic- 
able and a new or different cause of action cannot ordi- 
nar ly be added by amendment, especially after limitations 
have run against such new cause of action. 

§ 821. Variance between pleadings and proofs. 

If plaintiff si)ecifies in his complaint the act of negli- 
gence relied on, evidence of other negligence is not admis- 



2196 



Masteb and Sebvant. 



§821 



sible and there can be no recovery therefor, without an 
amendment. So where defendant sets up certain facts to 
show contributory negligence, he cannot prove other con- 
tributory negligence, at least without an amendment.^ 

If an action is brought under the common law, and not 
under the statute, plaintiff is not entitled to the benefits 
of the statutory provisions, but must be governed by the 
rules of the common law.^ 

On the other hand, if several grounds of negligence 
are set forth in the complaint, plaintiff may recover al- 
though he only proves one of them.** 

So if common law and statutory grounds for recovery 
are alleged, a recovery may be had if the evidence is 
sufficient to prove either one of them.'* 



89. In an action brought under 
the statute the only cause of action 
alleged was for the negligence of an 
engineer, and at the trial the evi- 
dence was directed to an attempt 
to show that the person was yard 
master and that the injury was 
caused by his negligent and im- 
proper conduct. It was said: "The 
rules of pleading require that the 
allegations of a complaint, under 
this statute, shall show clearly the 
relation between the negligent par- 
ty and the company which are re- 
lied upon, and the proofs must be 
confined to the aUegations made." 
Albrecht ▼. Milwaukee & Superior 
R. Co., 87 Wis. 105. 68 N. W. 72, 
41 Am. St. Rep. 30. 

90. Chisholm v. Manhattan R. 
Ck)., 116 App. Div. 320, 101 N. Y. 
Supp. 625; Curran v. Manhattan 
R. Co., 118 App. Div. 347, 103 
N. Y. Supp. 351. A common law 
action, pleaded and tried as such, 



is not entitled to the benefits of the 
spedal rules laid down for con- 
trolling actions imder the Em- 
ployers' Liability Act. Welch v. 
Waterbury & Co., 136 App. Div. 
315, 120 N. Y. Supp. 1059. 

91. Bull v. Atlanto & C. A. L. 
R. Co., 149 N. C. 427, 63 S. E. 126; 
Ft. Wayne & Wabash V. T. 
Co. v. Crosbie, 169 Ind. 281, 81 
N. E. 474; Wilson y. Escanaba 
Woodenware Co., 152 Mich. 540, 
116 N. W. 198. 

92. Mayse ▼. Northern Pao. 
R. Co., 41 Mont. 272, 108 
Pao. 1062. Where a petition 
alleged negligence in employing 
incompetent servants and also 
a cause of action under the 
statute taking away the fellow- 
servant defense, a nonsuit should 
not be granted merely because the 
first ground of negligence was not 
proved. Lewis v. Wabash R. Co., 
142 Mo. App. 585, 121 S. W. 1090. 



^822 



Pleading. 



2197 



II. Complaint. 

§ 822. General necessary allegations. 

There are certain general allegations which must always 
be set forth expressly or appear as a necessary inference 
from the other facts alleged. The mode of alleging these 
necessary facts differs more or less in the various states 
and also depends to some extent on whether the common 
law or code system of pleading prevails in the particular 
state. However, it is generally necessary to allege or show, 
in a complaint, petition or declaration, in an action by a 
servant or his representatives against the master for dam- 
ages for personal injuries, the following: 

1. The business in which defendant was engaged at 
the time of the accident. 

2. The facts as to the employment so as to show the 
relation of master and servant between plaintiff and 
defendant.** 

3. The character of the services plaintiff was hired to 
perform, and that he was acting within the scope of his 
employment at the time of the injury.'^ 

4. The facts creating the duty of the master which has 
not been performed.'* 

5. The facts to show the breach of the duty.'* 

6. The facts showing that the negligence alleged was 
the proximate cause of the injury.'^ 



93. See infra, § 825. 

94. As to soope of employment, 
see infra, ( S26, this chapter. The 
allegations as to oharacter of serv- 
ices may be general, where defect- 
ive instruments is alleged, except 
that th^ should increase in defin- 
iteneas as thoy relate to the par- 
tknilar instrumentality in question, 
and as to this th^ should be suffi- 
ciently specific to show the rela- 
tionship of the service to the in- 
stramentaHty. Cedartown Cotton 



& Export Co. v. Miles, 2 Ga. 
App. 79. 

95. Brown v. Shirley Hill Coal 
Co., — Ind. App. — , 94 N. E. 
574; Pittsburgh, Cincinnati, C. & 
St. L. R. Co. V. Ughtheiser, 163 
Ind. 247, 71 N. E. 218. See also 
infra, § 827, this chapter. 

96. See infra, § 828. That the 
master was negligent must be 
shown. See v. Lddecker, 142 Ey. 
752, 135 S. W. 284. 

97. See infra, ( 828. 



2198 



Masteb and Sbbvant. 



§^ 823, 824 



7. In some jurisdictions, the plaintiff's lack of actual 
and implied knowledge of the danger.'* 

8. In some jurisdictions, the allegation that the in- 
juries were sustained without fault or negligence on the 
part of the plaintiff.^ 

9. Where the facts alleged reasonably tend to estab- 
lish some defense which would defeat the action, enough 
additional facts must be set out to negative this de- 
fense. ^~ 

10. Allegations of fact as to the extent of the in- 
juries and the damages sustained. 

§ 823. Mode of stating facts. 

The allegations of the complaint should be plain, 
definite and unequivocal;^^ but the evidence which 
plaintiff expects to prove his allegations with need not be 
set forth. i»* 

§ 824. Alleging ownership or control of appliance or 
place. 

Where the negligence relied on is a defect in an appli- 
ance or the place of work, it must be alleged or shown 
that the defendant owned or controlled the appliance or 
place. *»» 



98. See infra, S 832. 
09. See infra, S 833. 

100. Cedartown Cotton & Ex- 
port Go. V. Miles, 2 Ga. App. 79. 

101. Cedartown Cotton & Ex- 
port Co. v. Miles, 2 Ga. App. 79. 

102. Cedartown Cotton & Ex- 
port Co. V. Miles, 2 Ga. App. 79. 
This proposition is stated in many 
master and servant oases but it is 
deemed to be so elementary that 
further citations are unnecessary. 

103. Louisville & N. R. Co. v. 
HaU, 87 Ala. 708, 6 So. 277, 13 
Am. St. Rep. 84, 4 L. R. A. 710; 
Troth v. Narcross, 111 Mo. 630, 



20 S. W. 297; The Conde Wifredo, 
77 Fed. 324, 23 C. C. A. 187. But 
see Dawson ▼. King (Tex. Civ. 
App.) 121 S. W. 917, where allega- 
tion that defendant was plain- 
tiff's employer in the work obviated 
the objection that the relation de- 
fendant sustained to the building 
was not stated. Complaint need 
not show how defendants were 
united in their joint adventure, 
whether by contract, partnership, 
or by some implication of the law. 
Fulwider v. Trenton Gas, L. & P. 
Co., 216 Mo. 682, 116 S. W. 608. 



^825 



Pleading. 



2199 



§ 825. Alleging relation of master and servant 

The complaint must show that the relation of master 
and servant existed between defendant and plaintiff at the 
time of the injury complained of,^®* provided plaintiff 
relies on the duties owing to him as a servant by defend- 
ant as a master,^®* it not being sufficient to show that the 
relation existed both before and after the accident if it 
did not exist at the precise time of the injury. ^^^ 

The rule in regard to the complaint when based on a 
common law cause of action, that it must allege or show 
the relation of master and servant, appUes equally well 
where the cause of action is based on a statute. ^^^ 

So this rule appUes to a suit in admiralty as well as to 
other proceedings.^®* 

It is not sufficient to merely allege employment by 
defendant's servants and agents, ^^ and a complaint not 
showing whether plaintiff was employed as a servant of 



104. Walton v. Lindsay Lum- 
ber Co., 145 Ala. 661, 39 So. 670; 
Logan V. Central Iron & Coal Co., 
139 Ala. 548, 36 So. 729; Fearon v. 
Mullins, 35 Mont. 232; Barowski 
y. Sohnltz, 112 Wis. 415, 88 N. W. 
236; Wabash R. Co. v. Beedle, 173 
Ind. 437, 90 N. E. 760; Simmer- 
man V. Hills Creek Coal Co., — 
Ala. — , 54 So. 426; Woodward Iron 
Co. V. Curl, 153 Ala. 215, 44 So. 
969. Alleging that plaintifF, at the 
time of reoeiving the injuries, was 
and had been employed by defend- 
ant for a long time prior thereto, 
was held sufficient. Di Maroho v. 
Builders Iron Foundry, 18 R. I. 
514, 27 Atl. 328. The oomplaint 
must show a oontraotual relation 
between the plaintiff and defend- 
ant. St. Louis & S. F. R. Co. v. 
Brantley, — Ala. — , 53 So. 305. 
Petition held to allege relation of 
master and servant between plain- 



tiff and defendant receiver. Dallas 
Electric Co. V. Mitchell, 33 Tex. 
av. App. 424, 76 S. W. 935. 

105. If not relied on> com- 
plaint need not state whether 
plaintiff was an employee or a mere 
trespasser. Jones v. Old Dominion 
Cotton Mills, 82 Va. 140, 3 Am. 
St. Rep. 92. See also Reardon v. 
Missouri Pac. R. Co., 114 Mo. 384, 
21 S. W. 731. 

106. Wabash R. Co. v. Erb, 36 
Ind. App. 650, 73 N. E. 939, 114 
Am. St. Rep. 392, where servant 
was injured while riding home on 
a railroad velocipede. 

107. Wabash R. Co. v. Beedle, 
173 Ind. 437, 90 N. E. 760; Travis 
V. Sloss-Sheffield Steel & Iron Co., 
162 Ala. 605, 50 So. 108. 

108. See The Conde Wifredo, 
77 Fed. 324, 23 C. C. A. 187. 

109. Whalan v. Whipple (R.I.), 
13 Atl. 107. 



2200 



Masteb and Servant. 



^826 



defendants or of an independent contractor has been 
held insufficient."® 

So alleging that plaintiff was working in the mine of 
defendant is not equivalent to an allegation that he was 
an employee of defendant."* 

But it is not necessary that there be an express aver- 
ment that the relation of master and servant exists if the 
facts showing such relation appear from the complaint;**^ 
and averments only indirectly alleging the relation of 
master and servant, are sufficient after verdict."* 

If the facts set out in the complaint show that the 
relation of master and servant existed, a recovery from 
defendant under the law of master and servant is allow- 
able, notwithstanding the conclusion of the pleader that 
he was a passenger rather than an employee."^ 

§ 826. Alleging that injured servant was acting within 
scope of employment. 

The complaint must allege or show that the injured 
servant, at the time of the accident, was acting within 
the scope of his employment."^ 

It is sufficient to merely set out the facts showing that 
plaintiff was acting within the scope of his employment,"* 



110. Boardman v. Crdghton, 
gS Me. 17 44 Atl. 121. 

111. Whitmore y. Alabama 
Cons. C. & I. Co., 164 Ala. 125. 

112. See Poor v. Madison River 
Power Co., 38 Mont. 341, 99 Pao. 
946, where it was alleged deceased 
was "employed and hired" by de- 
fendant and "was engaged in the 
performanoe of his duty under his 
employment. But compare Sloss- 
Sheffield Steel & Iron Co. v. 
Chamblee, 159 Ala. 185, 48 So. 664. 

1 13. Sargent Co. v. Baublis, 215 
HI. 428, 74 N. E. 455. 

114. Southern R. Co. v. West, 
4 Qa. App. 672. 62 8. E. 141. 

115. Stagg V. Edward Western 
Tea & Spice Co., 169 Mo. 489, 
69 S. W. 391; Cleveland, C. C. & St. 



L. R. Co. V. Perkins, 171 Ind. 307, 
86 N. E. 405. Allegations held 
sufficient, see Newport News Pub. 
Co. V. Beaumeister, 104 Va. 744, 
52 S. E. 627; Kirby Lumber Co. 
V. Chambers, 41 Tex. Civ. App. 
632, 95 S. W. 607. AUeging that de- 
fendant ordered plaintiff to per- 
form certain labor, and that while 
engaged in such labor, under the 
direction of his foreman, plaintiff 
was injured through defendant's 
negligence is sufficient to show that 
plaintifF was acting within the 
scope of his employment. Amer- 
ican Car & Foundry Co. v. Hill, 
226 El. 227, 80 N. E. 784. 

116. See Di Marcho v. Bunders 
Iron Foundry, 18 R. I. 514. 



^826 



Pleading. 



2201 



since it is not necessary to expressly state that the servant 
was acting within the scope of his employment. ^^^ 

In some jurisdictions it is sufficient to merely allege 
the general conclusion that plaintiff was at the time of 
his injury in the active discharge of his duties incident 
to his employment."* 

In Alabama, alleging that the injury occurred while 
plaintiff was doing an act 'Vhile in the performance of 
his duties" is sufficient;"' but alleging that plaintiff was 
injured while in the employment of defendant is not 
equivalent to alleging that he was in the discharge of any 
duty imposed upon him by his employment at the time of 
his injury.*^ 

So an allegation that the servant was injured while 
working in a certain place 'Vhere he had a right to be" 
is not equivalent to an allegation that the servant was 
engaged in or about the business of the defendant. ^^^ 

And an allegation that the injured servant was in the 
service or employment of the defendant in or about the 
operation of the defendant's mine is not the equivalent of 
an aUegation that he was at the time engaged in or about 
the business of the defendant. ^ ^ ^ 

But aUeging that plaintiff 'Vas engaged in and about 
said business of the defendant" has been held sufficient. ^^' 

Indefinite aUegations as to the particidar work plaintiff 
was doing at the time of the injury can generally be 



1 17. MoeUxnan v. Qieze-Hensel- 
Meier Lumber C!o.y 134 Mo. App., 
485, 114 S. W. 1023. AUe^ that 
it was neoeasary for plaintiff to 
go about the grounds in search of 
wood," the injuiy ooouziing while 
so doing, issuffident. United States 
Cement Co. v. Whitted, — Ind. 
App.—, 90 N. E. 481. 

118. Kansas City, M. & B. R. 
Co. Y. Burton, 97 Ala. 240, 12 So. 
88. 

119. Green v. Bessemer Coal, 



I. & L. Co., 162 Ala. 609, 50 So. 
289. Compare Chicago & E. I. 
R. Co. V. Hamilton, 42 Ind. App. 
512, 85 N. E. 1044. 

120. Woodward Iron Co. v. 
Curl, 153 Ala. 215. 

121. Adams v. Southern R. 
Co., 166 Ala. 449. 

122. Qreen v. Bessemer Coal, 
I. & L. Co., 162 Ala. 609. 

123. Sloss-Sheffield Steel & Iron 
Co. V. Chamblee, 159 Ala. 185, 48 
So. 664. 



2202 



Masteb and Sebvant. 



§827 



attacked only by special demurrer, ^^^ or motion to make 
more definite and certain. 

§ 827. Allegation of existence of duty. 

The complaint must show the particular duty toward 
the servant which the master failed to perform. ^^^ 

But while it is generally the better practice to dis- 
tinctly allege the duties of the defendant to the plaintiff 
charged to have been violated, yet if what is alleged in 
connection with averring a breach of those duties suffi- 
ciently shows what such duties are, the complaint is 
sufficient. ^** 

It has been said that ''an express allegation of the 
master's duty is unnecessary and will not sustain or aid a 
pleading. The facts and circumstances from which the 
duty arises must be set out in the declaration, and the 
pleading is sufficient if the law implies a duty from the 
facts and circumstances stated." ^^^ 

And a mere allegation of duty, without stating the facts 
on which it rests, is insufficient ;''« and where a paragraph 



124. Fearon v. MullliiB, 35 
Mont, 232. 

125. Louisville & N. R. Co. v. 
HaU, 87 Ala. 708, 6 So. 277, 13 
Am. St. Rep. 84, 4 L. R. A. 710; 
Cleveland, C. C. & St. L. R. Co. 
V. Morrey, 172 Ind. 513; Enahtla 
V. Oregon Short Line & U. L. R. 
Co., 21 Or. 136, 27 Pao. 91. A duty 
to another cannot be implied from 
the mere allegation that the aot 
was negligently done. Cleveland, 
etc., R. Co. V. Morrey, supra, this 
note. A general charge of negli- 
gence in the doing or omitting to do 
a particular act is not sufficient un- 
less there is also shown a duty to the 
plaintiff as servant imposed upon 
the defendant as master. Thomas 
Madden Son & Co. v. Wilcox, 
— Ind. App. — 89 N. E. 966. 

126. Squilache v. Tidewater 
Coal & Coke Co., 64 W. Va. 337, 



62 S. E. 446; City of Ft. Wayne 
V. Christie, 166 Ind. 172, 69 N. E. 
386; Esslinger v. Boehm, — N. J. 
L. — , 79 Atl. 267. Where, ftrom 
the facts alleged, the duty of the 
defendant may be implied, that is 
all that is necessary. Cristanelli 
V. Saginaw Mining Co., 154 Mich. 
423, 439, 119 N. W. 910. 

127. Cetofonte v. Camden Coke 
Co., 78 N. J. L. 662. Need not al- 
lege that the master "contracted" 
to furnish a safe place to work. 
Beyer v. Hamburg-American S. S. 
Co., 171 Fed. 582. 

128. Hayden v. Smithville Mfg. 
Co., 29 Conn. 648; Sargent Co. v. 
Baublis, 215 m. 428, 74 N. E. 465; 
Chicago, I. & L. R. Co. v. Barker, 
169 Ind. 670; Pittsburgh, C. & 
St. L. R. Co. V. Lightheiser, 163 
Ind. 247, 71 N. E. 218. 



^828 



Pleading. 



2203 



of the oomplaint merely sets forth the bare legal con- 
clusion of the duty of the master, the facts as to which are 
set forth in other paragraphs of the complaint, it has 
been held that it is proper to strike it out as surplusage 
on motion.*** 

The complaint is subject to attack if it alleges a higher 
grade of duty than the law imposes,*^ although it woidd 
seem that the complaint shoidd be demurrable only where 
the facts themselves fail to show a want of ordinary care. 

Where the allegation of duty on the part of the master is 
in the alternative, if one of the alternatives fails to 
present a cause of action, the complaint is bad.*'* 



§ 828. Alleging negligence or breach of duty. 

The facts showing the existence of a duty having been 
alleged, it is next necessary to state facts showing the neg- 
ligence which consists of a breach of that duty. Generally 
the complaint alleges the facts occurring immediately 
preceding the injury which of themselves show wherein 
defendant was negligent, and then alleges that he ^'neg- 
ligentiy" fafled to perform the duty the breach of which 
is reUed on. 

Negligence must be expressly alleged or appear by legal 
intendment from what is alleged.*'* 

It is not sufficient to merely allege that plaintiff was not 
guilty of contributory negUgence.*" 

But no express allegation that a specified act of the mas- 
ter or of alleged negligent servant was a breach of his 
duty is necessary where it is self evident.*'* 



129. Green v. Indian Gold 
Min. Co., 120 Fed. 715. 

130. Memweather v. Sayie 
Mining & Mfg. Co., 161 Ala. 
441; Norfolk & W. R. Co. v. 
Jackson's Adm'r, 85 Va. 489, 85 
£. 370; Canter v. Colorado United 
Min. Co., 35 Fed. 41. See also 
Richmond & D. R. Co. v. Burnett, 
88 Va. 538, 14 S. £. 372; Bonner v. 
Moore, 3 Tez. Civ. App. 416, 22 
8, W. 272. 



131. Sloss-Sheffield Steel & Iron 
Co. y. Sharp, 156 Ala. 284. 

132. Cox v. Providence Gas 
Co., 17 R. 1. 199, 21 Atl. 344. 

133. Louisville, N. A. & C. R. 
Co. V. Boney, 117 Ind. 501, 20 
N. E. 432, 3 L. R. A. 435. 

134. Longhemy v. Mineral 
Point & N. R. Co., 135 Wis. 139, 
115 N. W. 335. 



2204 



Masteb and Sebvant. 



^828 



The specific acts or omissions relied upon as consti- 
tuting the breach of duty must be alleged, ^'^ although 
in many jurisdictions it is stated that it is sufficient to 
allege negligence in general terms ;^'* but this does not 
mean that it is sufficient to merely allege that plaintiff was 
injured ''by the negUgence of defendant," but means that 
it is sufficient if the act stated as the cause of the injury 
is alleged to have been "negUgently" done."^ 

However, some states, including Alabama, Kentucky 
and Michigan, go very far in sustaining complaints made 
up largely of conclusions, at least as against a general 
demiuxer.^'* 

While, in alleging negUgence, facts must be stated,^'' 



135. ElAwiter v. Jones, 219 
lU. 626, 76 N. E. 673. 

136. Pigeon v. Fuller, 156 Cal. 
603. Where the facts showing the 
legal duty of the master are set 
forth, the general allegation of 
negligence has been held to suffi- 
ciently show a breach of duty, 
aeveland, C. C. & St. L. R. CJo. v. 
Morrey, 172 Ind. 513. After show- 
ing the existence of a duty on the 
part of defendant by appropriate 
allegations, it is proper to predi- 
cate negligence charged in general 
terms upon any act or omission by 
which it is claimed that duty was 
violated. Thomas Madden Son & 
Co. V. Wilcox, — Ind. App. — , 
89 N. E. 955. In Georgia, a peti- 
tion containing general allegations 
of negligence, without setting forth 
any specific acts of negligence, is 
subject to a special, but not to a 
general, demurrer. Seaboard Air 
Line R. Co. v. Pierce, 120 Ga. 230. 
47 S. E. 581; Miller v. Merchants 
and Miners T. Co., 115 Ga. 1009, 
42 S. E. 385. 

137. Cleveland, etc., R. Co. v. 
Berry, 152 Ind. 607, 53 N. E. 415. 



138. Need not set out facts to 
show negligence. CristaneUi v. 
Saginaw Mining Co., 154 Mich. 
423, 434, 117 N. W. 910. In Ken- 
tucky, negligence may be alleged 
generally, without setting out the 
facts constituting the negligence. 
Pittsburg, C. C. & St. L. R. Co. v. 
Schaub, 136 Ky. 652, 124 S. W. 885, 
holding sufficient an allegation that 
defendant knew, or by ordinary 
care could have known, that pbdn- 
ti£f waa under the car, and with 
this knowledge by gross ne^^igence 
backed the car upon him. Under the 
qrstem of pleading in Alabama, it 
is held that very general aver- 
ments of negligence falling but little 
short of mere conclusions are suffi- 
cient in the complaint. Southern 
Car & Foundry Co. v. Bartlett, 137 
Ala. 234, 34 So. 20; LouisviUe & 
N. R. Co. V. Jones, 130 Ala. 456, 30 
So. 586. 

139. Chesapeake & O. R. Co. 
V. Melton, 110 Va. 728; Pabner 
Brick Co. v. Chenall, 119 Ga. 
837, 47 S. E. 329; La Porte v. 
Cook, 20 R. I. 261, 38 Atl. 700- 
The facts constituting the negli- 



§828 



Pleading. 



2205 



although evidence need not be pleaded, ^^^ yet the general 
rule is that in pleading negligence the details or particidars 
of the act causing the injury need not be alleged, ^^^ 
but they may be required to be stated in some states by a 
8i)ecial demurrer and in others by a motion to make the 
complaint more definite and certain or a motion for a 
bill of particulars. 

If the servant was killed and the action is brought 
by his administrator, it seems that less particularity in the 
averments of negUgence is necessary, and mere conclu- 
sions as to negUgence may be sufficient. ^^^ 

Necessity for express averment of negligence. 

While it is customary to allege that an act was done 
negligently, yet where the pleader states facts from which 
the law will raise a duty, and shows an omission of the 
duty and residting injury, an averment that the act was 
negligent is unnecessary in personal injury suits in 
general, ^^' and the same rule applies to an action by a 
servant against his master.^^^ 



genoe need not be set out but it is 
miffioient to allege the acts the doing 
of which caused the injury, and 
then state that such acts were neg- 
ligently done. Walsh v. Western 
R. Co., 34 Fla. 1, 15 So. 686. An 
allegation of negligenoe that the 
railway engine of defendant was 
wilfully, carelessly, negligently and 
wrongfully, run into, upon and 
against said hand car, is too gen- 
eral; and also an allegation that 
those in control and operating such 
engine in disregard of their duty to 
exercise reasonable and proper care 
not to injure plaintiff, had negli- 
gently, carelessly, etc., run the said 
engine into, upon and against the 
said hand-ear, thereby causing the 
injuries complained of. Chesapeake 



& O. R. Co. V. Melton, 110 Va. 728, 
67 S. E. 346. 

140. lindgren v. Minneapolis 
& St. L. R. Co., 86 Minn. 152, 90 
N. W. 381. 

141. Where negligence in giving 
orders is relied on, it is not neces- 
sary to allege in what particular or 
respect the orders were negligent. 
Reiter-ConnoUy Mfg. Co. v. Ham- 
lin, 144 Ala. 192, 213, 40 So. 280. 

142. Birmingham R. L. & P. 
Co. V. Mosely, 164 Ahi. 111. 

143. 29 Cyo. 569. 

144. There need be no direct 
averment that the injury was the 
result of negligence on defendant's 
part, where it appears from the 
facts alleged. Romona Oolitic 
Stone Co. v. Johnson, 6 Ind. 
App. 550, 33 N. E. p. 1000. 



2206 



Masteb and Sebvakt. 



^828 



It follows that it is not fatal to use the phrase ' 'care- 
lessly or negligently."^" 

Since f aflure to observe a duty imposed by a mandatory 
statute is negligence per se, it need not be alleged that the 
failure to observe the statute was negligent. ^^^ 

Where statute makes accident itself proof of negli- 
gence. 

Under statutes making proof of injury prima fade 
evidence of negligence, a complaint is sufficient which 
merely states the relation of master and servant and the 
physical cause of the injury. ^*^ 

Alleging negligence as that of defendant when in 
fact negligence of servant. 

It often happens that when the negUgent act or omis- 
sion was primarily that of another servant, the negli- 
gence is alleged in the complaint as that of the defendant 
rather than of his servant. And it has been held in New 
York that the negUgence shoidd be alleged as that of the 
defendant although in fact it was that of an employee. ^^* 

So, in Indiana, in a common law action, it is sufficient 
to allege that the negligence relied on was that of the 
defendant, although in point of fact it was that of a serv- 
ant for whose acts defendant was responsible;^^' and 
under an Employers' Liability Act it has been held 
that an allegation of defendant's negligence includes that 
of the servant.^*® 



145. Masoot Coal Co. v. Qar- 
rett, 156 Ala. 290. 

146. Sloss-Sheffield S. & 1. Go. 
V. Sharpe, 161 Ala. 432. 

147. Hudson v. MiadBsippi 
Cent. R. Co., 95 Miss. 41, 48 
So. 289. 

148. Harris v. Baltimore Ma- 
chine & Elevator Co., 112 App. Div. 
389, 98 N. T. Supp. 440. In New 
York, a general charge of negli- 
gence of "defendant, its agents and 



servants" is sofficient, in the ab- 
sence of a demand for a bill of par- 
ticulars or a motion to make more 
definite and certain. Schradin v. 
New York, C. & H. R. R. Co., 124 
App. Diy. 765, 109 N. Y. Supp. 428. 

149. Pittsburgh, C. C. & St. 
L. R. Co. V. lightheiser, 163 Ind. 
247, 71 N. E. 218, 660. 

150. Indianapolis Union R. Co. 
Y. Houlihan, 157 Ind. ^4, 60 N. E. 
943. 



§828 



Pleading. 



2207 



It is proper to allege the negligence as that of defend- 
ant, "by its agents and employees.""^ 

An allegation that a corporation did a certain act is 
equivalent to an allegation that the corporation did it by 
its servants and agents. ^^^ 

Where the negUgent acts are alleged to have done by 
the defetidant corporation itself, it is held in most juris- 
dictions that the question of feUow-servants cannot be 
raised by demurrer, ^^' but in other jurisdictions such 
a complaint is demurrable for failure to state the relation 
to the corporation of the person who did the act com- 
plained of."* 

The true rule would seem to be, independent of statute, 
that when the negUgence of the master consists in the 
violation of a non-delegable duty, it is immaterial what 
particular servant of the corporation was negUgent in 
performing or failing to perform such duty, and that the 



151. Hoosier Stone Co. v. Mo- 
Cain, 136 Ind. 308, 31 N. E. 956. 
Alleging negligenoe on the part 
of defendant, its servants, or agents, 
is not demurrable, sinoe the pur- 
pose is to charge negligenoe against 
defendant acting through its serv- 
ants or agents. Eagle & Phoenix 
Mills V. Henon, 119 Ga. 389, 46 S. 
E.405. 

152. Di Marcho v. Builders 
Iron Foundry, 18 R. I. 514. Where 
negligence of servants while run- 
ning trains is alleged, the com- 
plaint need not allege the particular 
servant or servants whose negli- 
gence caused the injury. Rinard v. 
Omaha, K. C. & E. R. Co., 164 
Mo. 270, 64 8. W. 124. 

153. Brown v. Central Pac. R. 

Co., 68 CaL 171, 7 Pac. 447; Jack- 

•onville, T. & K. W. R. Co. v. 

Oalvin, 29 Fhi. 636, 11 So. 231, 16 

L. R. A. 337; libby v. McNeill 

& libby y. Schennan, 146 HI. 
8 M* ft S.^^lo 



540, 34 N. E. 801, 37 Am. St. Rep. 
191; Chicago, I. & L. R. Co. v. 
Barnes, — Ind. — , 68 N. E. 166; 
Ohio & M. R. Co. V. CoUam, 73 
Ind. 261, 38 Am. Rep. 134; Larson 
V. St. Paul, M. ft M. R. Co., 34 
Minn. 477, 26 N. W. 604; Fraser 
V. Red River Lumber Co., 42 
Minn. 520, 44 N. W. 878; Fifield v. 
Northern R. R., 42 N. H. 225; 
Minter v. Union Pac. R. Co., 3 
Utah, 500, 24 Pac. 911; Hulehan v. 
Green Bay, W. & St. P. R. Co., 58 
Wis. 319, 17 N. W. 17; Lessard v. 
Northern Pac. R. Co., 81 Wis. 189, 
51 N. W. 321; Hennann v. Port 
Blakely Mill Co., 69 Fed. 646. 

154. Di Marcho v. Builders 
Iron Foundry, 18 R. I. 514, 27 
Atl. 328 [followed in Fortin v. 
Manville Co., 128 Fed. 642]. See 
also Berard v. Smith, 29 R. I. 
528, Marker v. City of Mishawaka, 
35 Ind. App. 293, 74 N. E. 19. 



2208 Masteb and Servant. ^ 828 

complaint properly alleges the negligence as that of the 
employer, and the question of fellow-servants cannot 
be raised by demurrer; but if the act or omission relied on 
is not one relating to a non-delegable duty it is necessary 
to allege what servant was negligent, to escape a de- 
miuxer. 

If the rule of fellow-servants in the particular case has 
not been abolished by statute, a complaint against a 
corporation which fails to show what servant was negli- 
gent has been held insufficient in the federal coiirts on the 
theory that the negUgence may have been that of a fellow- 
servant;"* but if the defense of fellow-servants is not 
available because abolished by statute, the complaint 
need not, in most jurisdictions, allege the particular serv- 
ant or servants claimed to have been negligent, at least 
unless a motion is made to make the complaint more 
definite and certain or for a bill of particulars. 

In Kansas, however, a complaint alleging negligence on 
the part of defendant's servants must state which servant 
was negUgent as well as what acts or omissions consti- 
tuted the negligence. "• 

Stating name of negligent employee. 

Generally it is not necessary to state the name of the 
negligent servant."^ 

Thus, in Georgia, it is held that the mere failure to give 
the name of the person alleged to be the negUgent fore- 
man is not of itself ground for demurrer; but that the 
f ailiire both to state the name and to set forth what duties 
or services his position required of him, so as to show 
whether he was acting as a vice-principal or a fellow- 
servant, makes the petition subject to special demurrer."* 

So in Texas, the complaint need not state the name of 

155. Brown v. Pennsylvaaua 157. Under statutes, see infra, 
R. Co., 142 Fed. 909. § 843. 

156. Atchison, T. & S. F. R. 158. General Supply & Con- 
Co. V. O'Neill, 49 Ean. 367, 30 stniotion Co. v. Lawton, 131 Ga. 
Pao. 470. 375, 62 S. E. 293. 



^828 



Pleading. 



2209 



fhe negligent foreman who is claimed to be a vice-prin- 
cipal."* 

Where no statute governs the case, and the negligence 
alleged is that of a co-servant who is a superior servant 
because of his rank, and in the particular jurisdiction such 
a servant is not a fellow-servant of an inferior one such 
as plaintiff, it is not necessary to allege the name of the 
superior servant, where it was alleged he was a foreman, 
and the time, place and group of men over whom he was 
foreman is stated. ^^ 

Under some of the statutes, however, it is held that 
the name of the negUgent servant must be stated."^ 

Alleging negligent servant was acting within scope 
of employment. 

Where the negUgence of a co-servant is relied on it must 
be alleged or shown that his act or omission was done in 
the line of his duty;"^ but where the law presumes the 
negligent servant was acting within the scope of his em- 
ployment, from the other facts alleged, it is unnecessary 
to expressly allege such fact."' 

In pleading the authority of the negUgent servant, it 
has been held not necessary to set out the contract be- 
tween him and defendant, nor to state a conclusion as 
to the extent of the authority of such foreman or the 
scope of his employment."* 



159. Suderman & Dolson v. 
Eriger, 50 Tex. Civ. App. 29, 109 
S. W. 373. 

160. Suderman & Dokon v. 
Eriger, 50 Tex. Civ. App. 29, 109 
S. W. 373. 

161. See infra, § 843. 

162. LouiBville & N. R. Co. v. 
GiUen, 166 Ind. 321, 78 N. E. 1058. 
Where the act of a servant is relied 
on to show nefi:ligence of the master, 
the complaint should dearly show, 
by express allegation or neoessary 
inferenoe, that such act was within 
the scope of the employment of the 
offending servant. Holliday & 



Wyon Co. v. O'Donnell, 44 Ind. 
App. 647, 90 N. E. 24. 

163. Alabama Great Southern 
R. V. Brook, 161 Ala. 351. 

164. American Car & Foundry 
Co. V. Hill, 226 m. 227, 80 N. E. 
784, in which case the following 
allegation was held suificient : ' 'And 
plaintiff avers that on the date 
aforesaid he was a servant of the 
defendant, and as such servant was 
directed by the defendant's fore- 
man, George Howard, to take a 
wheelbarrow and remove from 
said shed certain debris which had 
been torn down." 



2210 



Masteb and Sebvakt. 



§828 



Alleging negligence as proximate cause of injury. 

The complaint must show that the negligence com- 
plained of was the proximate cause of the accident. ^^^ 

To show that the negligence alleged was the cause of 
the injury, it is not sufficient to merely allege a conclu- 
sion to that effect, where not warranted by the facts."* 

Qenerally there is no express averment that the negli- 
gence complained of was the proximate cause of the 
injury, and no such allegation is necessary if the facts 
themselves as set forth in the complaint show the causal 
connection between the two. 

The complaint need not state in so many words that 
the injury was due to the negligence of defendant but it 
is sufficient if the alleged acts of negligence are set out 
with sufficient fullness and clearness to enable defendant 
to understand the case made, and to know what he is to 
meet."^ 

In Alabama, it is held that the complaint must allege 
that the negUgence set forth was the proximate cause of 
the injury imless the facts and circumstances pleaded 
lead to that conclusion with reasonable certainty."" 



les. Ritoh v. EUby Frog & 
Switch Co., 164 Ala. 131; Moseley 
V. J. S. Sohofield Sons Co., 123 Ga. 
197, 51 S. E. 309; aeveland, C. C. 
& St. L. R. Co. V. Powers, 173 Ind. 
105, 88 N. E. 1073, 89 N. E. 485; 
South Bend Chilled Plow Co. v. 
Cissne, 35 Ind. App. 373, 74 N. E. 
282; Gulf, C. & 8. P. R. Co. v. 
Renfro (Tex. Civ. App.), 569 S. W. 
648. Suffidenoy of allegations, see 
Sloss-Sheffield, Steel & Iron Co. v. 
Mobley, 139 Ala. 425, 36 So. 181; 
Illinois Terra Cotta Lumber Co. 
V. Hanley, 214 Bl. 243, 73 N. E. 
373; Evansville & R. R. Co. y. 
Maddux, 134 Ind. 571, 33 N. E. 
345; Clear Creek Stone Co. v. 



Deannin, 160 Ind. 162, 60 N. E. 
609; Gordon v. Chicago, R. I. & 
P. R. Co., 129 la. 747, 106 N. W. 
177; Deremer v. Delaware, L. & 
W. R. Co., 47 N. J. L. 407, 24 Atl. 
481; Missouri, E. & T. R. Co. v. 
Hanson (Tex. Civ. App.), 590 S. W. 
1122; Duigee v. Unriee's Adm'x, 98 
Va. 247, 35 S. E. 794. 

166. Wabash R. Co. v. Beedle, 
173 Ind. 437. 90 N. E. 760. 

167. Seal y. Virginia Portland 
Cement Co., 108 Va. 806, 62 
S. E. 795. 

168. Memweather y. Sayre 
Mining Co., 161 Ala. 441, 49 So. 
916. 



^829 



Pleading. 



22H 



§ 829. Alleging knowledge on part of defendant. 

There is a oonfliot of opinion as to the necessity of alleg- 
ing knowledge on the part of defendant of the unsafe 
place, apphances or conditions. In some jurisdictions 
it is held that the complaint is insufficient unless it 
alleges knowledge or means of knowledge on the part of 
defendant, ^^ except where the facts alleged are such as 
to necessarily raise a presumption of knowledge. ^^^ 

On the other hand, it is held in some states that a 
general allegation of negligence or of facts which prima 
facie show negligence is sufficient without specifically 
averring want of notice of the defect on the part of 
defendant.*^* 



160. Worden v. Gore-Meehan 
Co., — Conn. — , 78 Atl. 422; Hay- 
den y. Smithville Mfg. Co., 29 
Conn. 548; Ryland y. Atlantio 
Coast line R. Co., 57 Fla. 143, 49 
So. 745; Pennsylyania Co. y. Cong- 
don, 134 Ind. 226, 33 N. E. 795, 
39 Am. St. Rep. 251; Malott y. 
Sample, 164 Ind. 645, 74 N. E. 
245; Chamberlain y. Waymiie, 32 
Ind. App. 442, 68 N. E. 306; 
Charleston & W. C. R. Co. y. 
MiUer, 113 Ga. 15, 38 S. E. 338; 
Carruthers y. Chicago, R. I. & P. 
Co., 55 Kan. 600, 40 Pao. 915; Buz- 
zell y. Laoonia Mfg. Co., 48 Me. 
113; Groyer y. New York, 8. & 
W. R. Co., 76 N. J. L. 237, 60 
AU. 1082; McMillan y. Saratoga & 
Washington R. Co., 20 Barb. (N. 
Y.) 449; Norfolk & W. R. Co. y. 
Jackson's Adm'r, 85 Va. 489, 8 
8. E. 370 [followed in Washington, 
A. & Mt. V. R. Co. y. Taylor, 109 
Va. 737, 64 8. E. 975]. See also 
Snmmerhasrs y. Ejuisas P. R. Co., 2 
Colo. 484 (knowledge of incompe- 
tency of seryant must be alleged); 
Southern Bell T. & T. Co., 122 
Ga. 602, 50 8. E. 343; Johnston y. 



Enterprise Mfg. Co., 130 Ga. 143, 
60 8. E. 449; Babcock Bros. Lum- 
ber Co. y. Johnson, 120 Ga. 1030, 
48 8. E. 438; Hencke y. Ellis, 110 
Wis. 532. In Montana, where it 
appears from the complaint that the 
defect is one of construction, an 
allegation of the employer's knowl- 
edge of the defect is not reqiured. 
Hollingsworth y. Dayis-Daly Es- 
tates Copper Co., 38 Mont. 143, 
99 Pao. 142. But see Fearon y. 
Cummins, 35 Mont. 232, 88 Pao. 
794. 

There are earlier cases in 
Indiana holding the contrary but 
the law as laid down by the later 
oases cited aboye clearly fix the 
position of the Indiana court. 

170. Pennsylyania Co. y. Sears, 
136 Ind. 460, 34 N. E. 15; Louis- 
yille, E. & St. L. C. R. Co. y. 
Hicks, 11 Ind. App. 588, 37 N. E. 
43; Warner y. Western North Car- 
olina R. Co., 94 N. C. 250. 

171. O'Connor y. Illinois C. R. 
Co., 83 la. 105, 48 N. W. 1002; 
Wilson y. Alpine Coal Co., 118 Ky. 
463, 81 S. W. 278; Branch y. Port 
Royal & W. C. R. Co., 35 8. C. 405, 



2212 



Masteb Ai!n> Sebvant. 



^829 



It is much the better practice, however, without regard 
to what the law is in the particular state, to si)ecifically 
aver that defendant knew of the defect and danger. 

Sufficiency of allegations. 

The complaint need not allege, in the exact terms, that 
the master knew, or, in the exercise of ordinary care, 
should have known, of the defects."* 



14 8. £. 808; Morriss Bros. v. 
Bowers, 105 Tenn. 59; Hoffman v. 
DiokizuBon, 31 W. Va. 142, 6 8. E. 
53; Sweeney v. Jessup & Moore 
Paper Co., 4 Pennew. (Del.) 284, 
54 Atl. 954; Chicago, B. & Q. R. Co. 
V. KeUogg. 55 Neb. 748, 76 N. W. 
462, 54 Neb. 127, 74 N. W. 454. 

In Montana, the rule is laid 
down that knowledge by defend- 
ant is suifioiently averred by an al- 
legation that defendant negligently 
I>ermitted appliances to become 
defective and negligently suffered 
them to remain in a defective con- 
dition. HoUingsworth v. Davi»- 
Daly Estates Copper Co., 38 Mont. 
143, 99 Pao. 142. 

UnDEB ILLINOIS laNING STATXTTB, 

wilfully" is synonymous with 
knowingly." Peebles v. O'Qara 
Coal Co., 239 HI. 370, 88 N. E. 
166. 

In Missoubi the rule is now 
settled by Clippard v. 8t. Louis 
Transit Co., 202 Mo. 432, 101 8. W. 
44, which, after reviewing the 
earlier cases, held that an allega- 
tion that "plaintiff avers that the 
defendant was negligent in fur- 
nishing said car for said work in said 
defective condition" was sufficient 
as equivalent to an allegation of 
knowledge, although it is stated it 
"would have been much better to 



»» 



«4 



(4 



have had the express averments 
as to knowledge. 

In Nebbaska, alleging that the 
master "unlawfully, wrongfully and 
negligently" directed his servant 
to work in a cave under circum- 
stances detailed at length which 
plaintiff charged made the cave a 
place dangerous to work in, is suffi- 
cient as in effect charging knowl- 
edge. Hankins v. Reimers, 86 
Neb. 307, 125 N. W. 516. What 
the law is in Illinois is not dear. 
In Chicago & E. I. R. Co., 132 HI. 
161, it was held not necessary to 
allege that defendant knew of de- 
fects in the construction of its 
tracks, switches, etc., where it was 
alleged that it "permitted" the 
condition complained of, on the 
theory that such allegation implied 
knowledge on the part of de- 
fendant. In Illinois Steel Co. v. 
Ostrowski, 194 Dl. 376, 62 N. E. 
822, alleging that defendant al- 
lowed a machine to become old and 
worn, and neglected to make pro- 
I>er inspections thereof, was held 
sufficient. In Owens v. Lehigh 
Valley Coal Co., 115 111. App. 142, 
the allegation of knowledge is held 
unnecessary. 

172. Galveston, H. & 8. A. R. 
Co. V. Udalle (Tex. Civ. App.), 91 
8. W. 330. 



^830 



Pleading. 



2213 



An allegation that the defect was known to the defend- 
ant includes constructive knowledge, ^^' and under such 
an allegation evidence of constructive knowledge is admis- 
sible."* 

Furthermore the exact time that defendant knew of the 
defect need not be alleged."^ 

Alleging constructive notice is sufficient without alleging 
actual knowledge."* 

Where the preliminary facts are set forth in detail, 
the mere allegation that defendant knew ''or ought to 
have known" of the defect is not objectionable as a 
statement of a legal conclusion;"^ and it is not necessary 
to allege the facts showing how defendant knew."^ 

In Rhode Island, the court goes to the extreme in hold- 
ing that an allegation that defendant knew or was bound 
to know of the existence of a defect is bad, and that the 
allegation shoidd be that the defects were known or 
woidd have been known but for the want of reasonable 
care.^^ 

§ 830. Alleging service of notice of injury. 

Where service on the employer of a notice of the injury 
is required by statute or contract, the complaint must al- 
lege that notice was served.^** 



173. Louisville, E. & St. L. 
C. R. Co. V. MiUer, 140 Ind. 685, 40 
N. E. 116. 

174. Cuirelli v. Jackson, 77 
Conn. 115, 58 AtL 762; Blazenio v. 
Iowa & W. Coal Co., 102 la. 706, 
72 N. W. 292. 

175. Wabash W. R. Co. v. 
Morgan, 132 Ind. 430, 31 N. E. 661 ; 
Oolitio Stone Co. v. Ridge, — Ind. 
— , 91 N. E. 944. 

176. Noyes y. Smith, 28 Vt. 59. 

177. Southern States Cement 
Co. Y. Hehns, 2 Ga. App. 308, 314, 
58 8. £. 524; Cedartoim Cotton & 
Export Co. V. Miles, 2 Ga. App. 79, 
58 8. E. 289. But where the duty of 



knowing does not arise as a matter 
of law from the facts already stated, 
then the spedflo eiroumstanceB cre- 
ating the duty of knowing must be 
detailed. Id. 

178. Consolidated Coal Co. v. 
Sohreiber, 65 HI. App. 304; Cedar- 
town Cotton & Export Co. v. Miles, 
2 Ga. App. 79. 

179. Cox V. Providence Gbs 
Co., 17 R. I. 199, 21 Atl. 344. 

180. Mathieson v. St. Louis 
& 8. F. R. Co., 219 Mo. 542, 118 
8. W. 9; Rogers v. Portland Lum- 
ber Co., 54 Or. 387, 102 Pac. 601, 
103 Pac. 514; Ginricevic v. Ta- 
coma, 57 Wash. 329, 106 Pac. 



2214 



Masteb and Sebvant. 



§831 



However, where there is no statute or contract provi- 
sion requiring a notice, the giving of notice need not be 
alleged ; and where the statute does not require notice in 
actions based on the common law, a complaint stating a 
good cause of action under the common law, although it 
attempts to set up a cause of action under a statute, is 
sufficient without alleging that notice was given. ^^^ 

In stating that notice was given, it is the better practice 
to allege the time when it was given, but it is held unnec- 
essary to so state in Massachusetts. ^^^ 

§831. Negativing defenses in general. 

It is a general rule that the complaint need not antici- 
pate a defense and negative it. In the application of this 
rule to the law of master and servant more or less conflict 
as between the different jurisdictions has arisen, based on 
divergent views as to what constitutes a part of plaintiff's 
cause of action and what is not a part thereof but is a 
defense. In most of the states it is not necessary in the 
complaint to negative contributory negligence or assump- 
tion of risk and it is submitted that this is the better 
rule, and the tendency of the later judicial decisions 
and legislative enactments is in that direction. Of course 
if the statement of facts in the complaint necessarily tends 
to show assumption of risk, or contributory negligence, 
or that the negligence of a fellow-servant was the efficient 
cause of the injury for which the master is not liable, 
then it should be, and is, necessary, in aU jurisdictions, 
for plaintiff to allege further facts tending to show that the 
defense is in reality unavailable. 

As in other actions, the complaint need not negative 
a proviso in the statute."* 



008; Gmaehle v. Roaenberg:, 80 
App. Div. 541, 80 N. Y. Supp. 705; 
Johnson v. Roaoh, 83 App. Div. 
361, 82 N. Y. Supp. 203; Crosby v. 
Lehigh VaUey R. Co., 128 Fed. 
193, based on New York statute. 
181. Gmaehle v. Rosenberg, 
178 N. Y. 147, 70 N. E. 411. 
Allegation that notice was Qven 



wfll be treated as surplusage in ac- 
tion based on oommon law. Young 
v. Missouri, K. & T. R. Co, 82. 
Kan. 332, 108 Pao. 99. 

182. Steffe v. Old Colony R. 
Co.. 156 Mass. 262, 30 N. E. 1137. 

183. Blankenship v. Ethel Coal 
Co., — W. Va. — , 70 S. E. 862. 



^832 



Pleading. 



2215 



§ 832. Negativing assumption of 

In Alabama,"* Arkansas, California, Colorado, Dela- 
ware, Iowa, Louisiana, Michigan, Minnesota, Montana, 
Nebraska, New Jersey, New York, North Carolina, 
Oregon, South Carolina, Texas, Utah, Virginia, Washing- 
ton, and Wisconsin, and in the federal courts, the com- 
plaint need not negative the assumption of risk by 
alleging a lack of knowledge of the defect complained of, 
or otherwise."* 

On the other hand, in Connecticut, "• Georgia, Illinois,"^ 
Indiana, Maine, Ohio, Rhode Island and Vermont,"^ 
the complaint must negative the assumption of the risk, 
in a case where assumption of risk may be interposed as a 
defense, but of course need not negative the defense where 
it cannot be interposed, as where, in some states, the 
negligence consists in the employer's violation of a statute 
enacted for the protection of employees. "• 

In Indiana, it is held that the complaint need not, how- 
ever, negative ^mowledge which the law imputes by reason 
of a i)erson contracting for and engaging in a particular 
service. ^•^ 

In the states where it is necessary to negative assump- 
tion of risk, but not in other states, the complaint must 



184. Southern Car & Foundry 
Co., V. Jennings, 137 Ala. 247, 34 
So. 1002; Broslin v. KannaB City, 
M. & B. R. Co., 114 Ala. 398, 21 
So. 475. 

185. See § 768, burden of proof. 
In Michigan it is held that the oom- 
plaint need not negative plaintifiF's 
knowledge of the danger i^ it avers 
that he was without fault. Cristan- 
elli V. Saginaw Min. Co., 154 Mich. 
423, 117 N. W. 910. 

186. Elie V. Cowles & Co., 82 
Conn. 236. 

187. Chicago & A. R. Co. v. 
Bell, 111 m. App. 280. 

188. See burden of proof, § 768. 

189. Even in thostf states where 



assumption of risk must ordinarily 
be negatived in the complaint, if 
assumption of risk is no defense 
in the particular action, as for 
instance in some states where the 
negligence consists in the violation 
of a statute passed for the pro- 
tection of employees, it need not 
be negatived in the complaint. 
Where a statute expressly precludes 
the defense of assumption of risk, 
the complaint need not negative the 
existence of such defense. Republic 
Iron & Steel Co. v. Yanuszka, 166 
Fed. 684. 

190. Qeveland, C. C. & St. L. 
R. Co. V. Bossert, 44 Ind. App. 
245, 87 N. E. 158. 



2216 



Masteb and Sebvant. 



§832 



allege that plaintiff had no knowledge of the incompetency 
of the negUgent fellow-servant, where the action is based 
on the negligence of the master in employing or retaining 
incompetent co-servants. ^•^ 

A statute providing that want of contributory negli- 
gence need not be alleged does not affect the necessity of 
negativing assumption of risk.^^^ 

Sufficiency of allegations. 

No particular phraseology is required in denying 
assumption of risk. The assumption of risk may be nega- 
tived in general terms/*' but if the facts are thereafter 
stated specifically iq the complaint the specific allega- 
tions will control the general one/*^ and the complaint 
may be demurrable as showing an assumption of risk.^'^ 

Where the specific facts alleged show a knowledge of 
danger, or the same opportunities for knowledge as the 
master, these allegations will overcome a general allega- 
tion of want of knowledge. ^•^ 

Assimiption of risk is sufficiently negatived by aver- 
ments that plaintiff had no knowledge of the defect or 
danger, ^*^ but the allegation of want of knowledge must 



191. Indianapolis & G. R. T. 
Co. v. Foreman, 162 Ind. 85, 69 
N. E. 669, 102 Am. St. Rep. 185. 
That express allegation is unneo- 
essary, see Mahonej's Adm'r v. 
Rutland R. Ck)., 81 Vt. 210, 69 
Atl. 652. 

192. Cleveland, C. C. & St. L. 
R. Co. V. Bossert, 44 Ind. App. 
245, 87 N. E. 158. 

193. LouisviUe, E. & St. L. 
C. R. Co. Y. Hioks, 11 Ind. App. 
588, 37 N. E. 43. 

194. Id. See also Pennsylvania 
Co. V. Sears, 136 Ind. 460, 34 
N. E. 15. 

195. LouisviUe & N. R. Co. v. 
Kemper, 147 Ind. 561, 47 N.E.214. 
In an action based on the common 
law, the employee must negative 



his want of knowledge of the 
danger attending his use of a way 
on the master's premises. An 
allegation of want of knowledge is 
overcome by allegation of specific 
facts showing knowledge. Cleve- 
land, C. C. & St. L. R. Co. V. 
Powers, 173 Ind. 105, 88 N. £. 
1073, 89 N. E. 485. 

196. Cleveland, C. C. & St. L. 
R. Co. V. Morrey, 172 Ind. 513, 
88 N. E. 932; Cleveland, C. C. & 
St. L. R. Co. V. Powers, 173 Ind. 
105, 88 N. E. 1073, 89 N. E. 485. 

197. See Cleveland, C. C. & St. 
L. R. Co. V. Bossert, 44 Ind. App. 
245, 87 N. E. 158; Cedartown 
Cotton & Export Co. v. Miles, 
2 Ga. App. 79. The burden of 
showing absence of assumed risk 



§832 



Pleading. 



2217 



not be by way of recital."* It must be as broad as the 
allegation of knowledge on the part of the master, and 
disclose an absence of knowledge of the defects or 
omissions complained of.^** 

So the want of knowledge must be expressly, or by 
necessary inference, alleged to have existed at the time 
of the accident.** 

It is not necessary to aver in the complaint facts showing 
affirmatively that the employee had no means of ascer- 
taining the defect. It is sufficient to aver he had no 
knowledge of such defect.**^ 

So it is not necessary to allege that plaintiff did not 
have equal opportunity with defendant to know of the 
defect or danger.*®* 



being upon the plaintifiF in Indiana, 
a oomplaint is defective whioh does 
not aUege, where safety of appli- 
anoes or premises or incompetency 
of servants is involved, ignorance 
thereof on the part of the employee. 
If the defect is in a platform he must 
aUege its necessity. Peterson v. 
New Pittsburg Coal & Coke Co., 
149 Ind. 260, 49 N. E. 8. Assump- 
tion of risk is negatived by aver- 
ments showing that plaintiff had no 
knowledge of the danger, or no 
knowledge of facts and droum- 
stancee which, if he had known, 
woidd have apprised him of the 
peiiL Cleveland, C. C. A St. L. 
R. Co. V. Bossert, 44 Ind. App. 
245, 87 N. £. 158. 

198. HoUiday & Wyon Co. v. 
O'Donnell, 44 Ind. App. 647, 90 
N. £. 24; Cleveland, C. C. & St. L. 
R. Co. V. Morrey, 172 Ind. 513, 88 
N. E. 932. 

199. Cleveland, C. C. & St. L. 
R. Co. V. Powers, 173 Ind. 105, 
88 N. E. 1073, 89 N. E. 485. 

200. Ames v. Lake Shore A 
M. 8. R. Co., 135 Ind. 363, 35 
N. E. 117. 



201. Denver, T. & Ft. W. R. 
Co. V. Smock, 23 Colo. 456, 48 
Pac. 681; Baltimore & O. S. W. R. 
Co. V. Roberts, 161 Ind. 1, 67 N. 
E. 530; Ohio & Miss. R. Co. v. 
Pearoy, Admx., 128 Ind. 197, 27 
N. E. 479; Louisville & N. R. Co. 
V. Carter (Ky.), 112 S. W. 904; 
Peter & Melcher Steam Stone- 
works V. Green, 25 Ey. L. Rep. 946, 
76 S. W. 844; Ross-Paris Co. v. 
Brown 121 Ky. 821, 28 Ey. L. Rep. 
813, 90 S. W. 568; Contra, Mad 
River & L. E. R. Co. v. Barber, 5 
Ohio St. 541, 67 Am. Dec. 312; 
Roland v. Tift, 131 Ga. 683, 63 
S. E. 133; Gould v. Aurora, E. & 
C. R. Co., 141 ni. App. 344. If. 
however, it is averred he could not 
have learned of it by the exercise 
of ordinary care, this must be 
proved. Chicago, I. & L. R. Co. v. 
Glover, 154 Ind. 584, 57 N. E. 244. 

202. Louisville, N. A. & C. R. 
Co. V. Breedlove, 10 Ind. App. 657, 
38 N. E. 357. Where the defect 
complained of was a guy rope it 
was said "it was not necessary for 
him (the servant) to show in his 
pleadings that he had inspected the 



2218 



Ma8T£b and Sbbvant. 



^832 



The general allegatioii of want of knowledge of the defect 
by plaintiff covers both actual and imputed knowledge. **• 

An averment that the plaintiff was free from fault does 
not take the place of averments showing that the risk 
was not voluntarily assumed. *** 

In Georgia, it is held that freedom from 'implied'^ 
knowledge can be alleged in the form of a legal conclusion 
only when the facts set forth show such a state of circum- 
stances as to relieve the plaintiff from such an imputa^ 
tion.»» 



rope or that he had not had oppor- 
tunity to inspeot it, or that he oould 
not have learned of its defective 
oondition by the exercise of ordinary 
care and diligence." Consolidated 
Stone Co. v. Williams, 26 Ind. App. 
131, 57 N. E. 558. An averment in 
a complaint that an employee en- 
gaged in pushing a hand car loaded 
with limestone to a Idln did not 
know and could not have dis- 
covered without a special examina- 
tion that the platform was decayed, 
the track and rails were worn and 
rusty and rotten so that they would 
spread, etc., negatived knowledge 
and an assumption of the risk. The 
avennent seems to have overcome 
every reasonable presumption. Sa- 
lem-Bedford Stone Co. v. Hilt, 26 
Ind. App. 543, 59 N. E. 97. 

203. Consolidated Stone Co. v. 
Summit, 152 Ind. 297, 53 N. £. 235; 
Pennsylvania Co. v. Witte, 15 Ind. 
App. 583, 43 N. E. 319, 44 N. £. 
377. In Indiana an aUegation of 
want of knowledge negatives im- 
puted knowledge. Cleveland, C. C. 
& St. L. R. Co. V. Bossert, 44 Ind. 
App. 246, 87 N. E. 158. 

204. Louisville, N. A. & C. R. 
Co. V. Corps, 124 Ind. 427, 24 N. E. 
1046; Indianapolis & G. R. T. 
Co. V. Foreman, 162 Ind. 85, 



102 Am. St. Rep. 185; Chicago 
O. Coal & Car Co. v. Norman, 
49 Ohio St. 598, 32 N. £. 857; 
Hesse v. Columbus, S. & H. R. Co., 
58 Ohio St. 167; Brainard v. Van 
Dyke, 71 Vt. 359. But see Henry 
V. Fitchburg R. Co., 65 Vt. 436, 
26 AU. 485; Cristanelli v. Saginaw 
Min. Co., 154 Mich. 423, 117 N. 
W. 910. An allegation that plaintiff 
was injured "without any fault or 
negligence on his part" does not 
take the place of an averment show- 
ing that the risk was not assumed. 
Cleveland, C. C. & St. L. R. Co. 
V. Bossert, 44 Ind. App. 245, 
87 N. E. 158. 

205. Taylor v. Virginia-Car- 
olina Chemical Co., 4 Ga. App. 705, 
62 S. E. 470; Cedartown Cotton & 
Export Co. V. Miles, 2 Ga. App. 79, 
58 S. E. 289. If the plaintiff relies 
upon his tender years, his inex- 
perience, a false sense of security 
occasioned by misrepresentations of 
the master, the latent character of 
the defect, or other reason re- 
garded by the law as suiBcient to 
relieve the servant from implica- 
tion of knowledge, the facts should 
be definitely stated. Cedartown 
Cotton & Export Co. v. Miles, 
2 Ga. App. 79, 58 S. E. 289. As a 
nicety of pleading, it is better to 



^833 



Pleading. 



2219 



Averment of promise to remedy defects. 

In those states where assumption of risk must be nega- 
tived, and plaintiff had knowledge of the danger, but 
relied on a promise to remedy the defect, such promise 
must be pleaded ; ^* and it should be alleged that plaintiff 
relied on the promise, ^^ and that a reasonable time for 
remedjring the defect had elapsed after the promise was 
made.*^' 

But it is not necessary to also allege that the master's 
failure to remedy the defect was negligence. ** 

The complaint need not allege what particular officer or 
agent made the promise to remedy the defect. ^^^ 

Complaint showing assumption of risk on its face. 

If the complaint shows on its face that plaintiff assumed 
the risk, it is demurrable, ^^^ provided assumption of risk 
is a defense which may be interposed in the particular 
case. 

§ 833. Negativing contributory negligence. 

In a previous chapter, the question as to the burden of 
proof in connection with contributory negligence has been 



allege the lack of aotual knowledge 
direetly, even though the proof 
be oiroumBtantial." Southern 
States Cement Co. v. Helms, 2 Oa. 
App. 306, 58 S. E. 524. 

206. Daugherty Y. Midland Steel 
Co., 23 Ind. App. 78, 53 N. E. 844; 
Elie Y. C. Cowles & Co., 82 Conn. 
236, 73 Atl. 258. SuflKcien<7 of aUe- 
gations as to promise to remedy 
defect, see Romona Oolitio Stone 
Co. Y. Phillips, 11 Ind. App. 118, 
39 N. E. 96; MoFarlan Carriage 
Co. Y. Potter, 153 Ind. 107, 53 
N. E. 465; Vu^inia & N. C. Wheel 
Co. Y. Harris, 103 Va. 708, 49 S. E. 
991; Stephenson y. Dunoan, 73 
Wis. 404, 41 N. W. 337, 9 Am. St. 
Rep. 806. 

207. Consolidated Coal Co. y. 
Bokamp, 181 HL 9, 54 N. E. 567. 



208. Id. Bums Y. Windfall Mfg. 
Co., 146 Ind. 261, 45 N. E. 188. 
Contra, Daugherty y. Midland 
Steel Co., 23 Ind. App. 78, 53 N. E. 

QAA 

209. Taylor y. Felsing, 164 ni. 
331, 46 N. E. 161. 

210. Buroh Y. Southern Pao. Co., 
140 Fed 270. 

211. Bolden y. Central of Ga. 
R. Co., 130 Ga. 456, 60 S. E. 1047; 
Dozier y. Atlanta, 118 Ga. 354, 
45 S. E. 306; HooYer y. Empire 
Coal Co., 149 m. App. 258; Mi^ 
souri Pao. R. Co. y. Baxter, 42 
Neb. 793, 60 N. W. 1044; Walker y. 
Wehkhig, 29 Ind. App. 62, 63 N. 
E. 128; Elutts y. Gibson Bros., 37 
Tex. CiY. App. 216, 83 S. W. 404; 
Smith Y. Armour & Co., 37 Tex. 
CiY. App. 633, 84 S. W. 675. 



2220 



Masteb and Sebvant. 



§833 



considered,'^' and it has been seen that, although the law 
is not the same in all the states, that in great majority 
contributory negligence is an affirmative defense which 
must be pleaded and proved by defendant. And in some 
states, including Indiana and New York, where the bur- 
den formerly rested on plaintiff, the rule has been changed 
by a statute making such negligence an affirmative de- 
fense which must be pleaded and proved by defendant. '*• 

In Illinois, Louisiana, Maine, Massachusetts, and 
Michigan, the plaintiff must still show in his complaint 
that he was not negUgent;'^^ and in Iowa, Kentucky, 
Maryland, and Ohio, there are cases so holding although 
it is somewhat doubtful if the rule prevails in all of such 
jurisdictions. In some of the other states the question 
does not seem to have been decided, but in most of the 
states the courts have expressly held that contributory 
negligence need not be negatived in the complaint. 

In Georgia, where the cases are differentiated according 
to whether defendant is a railroad company or not, the 
decisions are to some extent conflicting and it is therefore 
safer in all cases to aver in the petition that plaintiff was 
acting with due care, and to allege in railroad cases that 
he was *'free from fault."'" 

In Connecticut, where there has been some diversity of 
opinion as to the burden of proof of contributory negU- 



212. See supra, $ 769. 

213. See supra, $ 769. Under 
the 1899 statute in Indiana, it is 
expressly provided that plaintiff 
need not alles:e the want of con- 
tributory negligence, and also that 
the defense may be proved under 
the answer of general denial. 
Bum's Ann. St. 1908, $ 362. Sec- 
tion 7083 et seq.. Bums Ann. St. 
1901, was held to be ihodified by 
Acts of 1899, p. 58 (Bums Ann. St. 
1901, sec. 359a), so that a com- 
plaint for personal injuries under 



the former act need not allege that 
plaintiff was in the exercise of due 
care at the time of the injury. 
Pittsburgh, C. C. & St. L. R. Co. 
V. lightheiser, 163 Ind. 247, 71 
N. E. 218. 

214. See supra, $ 769. 

215. Central of Qa. R. Co. v, 
Ruff, 127 Ga. 200, 66 S. E. 290. 
holding that an employee cannot 
recover against a railroad company 
unless he alleges that he was free 
from fault and that the defendant 
was negligent. 



§833 



Pleading. 



2221 



gence, it has been recently held that plaintiff need not 
negative his own negligence in the complaint. ^^* 

Knowledge or means of knowledge. 

The question of negativing knowledge or means of 
knowledge of the danger properly belongs under the 
head of negativing assumed risk and it has been so 
treated in this work notwithstanding the courts in some 
instances refer to such knowledge or means of knowledge 
as contributory negligence rather than assumption of 
risk.*" 

Sufficiency of allegations. 

It is sufficient to allege the facts showing that the 
injured servant was in the exercise of due care at the time 
of his injury, without alleging any conclusions. *" 

On the other hand, it is generally held sufficient to 
allege the mere conclusion that plaintiff was in the exer- 
dse of due care, or its equivalent, without stating facts 
to negative contributory neghgence.*" 

Where it is necessary to negative contributory negli- 
gence, plaintiff need not minutely and in detail describe 
every fact and circumstance in the case which would 
tend to show the want of negligence on the part of the 
injured servant.*^ 



216. Simeoli v. Derby Rubber 
Co., 81 Conn. 423, 71 Atl. 546. 

217. See supra, $ 832. 

218. Republic Iron & Steel Co. 
V. Walsh, 32 Ky. L. Rep. 420, 105 
8. W. 974. 

219. Buehner Chair Co. v. 
Feulner, 28 Ind. App. 479, 63 N. E. 
239, (allegation that injury was 
caused without fault or negligence 
on the part of plaintiff); Pope v. 
Great Northern R. Co., 94 Minn. 
429, 103 N. W. 331; Summit Coal 
Co. Y. Shaw, 16 Ind. App. 9, 44 N. 
E. 676; Pennsylvania R. Co. v. O - 



Shaughnessy, 122 Ind. 588, 23 
N. E. 675. But see Di Marcho v. 
Builders' Iron Foundry, 18 R. I. 
514, 27 Atl. 328. In Georgia, in an 
action against a railroad company, 
plaintiff must allege that he was 
free from fault, although it is not 
necessary that the precise phrase 
should be used, provided such con- 
dition of affairs is apparent from 
the language used. Central of Ga. 
R. Co. V. Ruff, 127 Ga. 200. 

220. Central R. Co. V. Hubbard, 
86 Ga. 632, 12 S. E. 1020. 



2222 



Masteb aitd Sebvant. 



§834 



The phrase ''without fault" has been held to suffi- 
ciently negative negligence, ^^^ as has the allegation that 
plaintiff was in ''the usual and ordinary course of bis 
employment. " * * * 

But an allegation that plaintiff was injured while 
fulfilling his duty has been held not equivalent to an 
allegation that he was in the exercise of due care.^^' 

The complaint must show that plaintiff's freedom 
from fault extended, in point of time, up to the injury.*** 

The mere fact that plaintiff alleges in his complaint 
that he was in the exercise of due care does not render it 
safe from a demurrer where such averment is clearly in- 
consistent with other allegations contained in the declar- 
ation.*" 

On the other hand, unless the facts alleged in the com- 
plaint show clearly that plaintiff was negligent, the alle- 
gation of the exercise of due care will render the com- 
plaint good as against a demurrer.*** 

§ 834. Negativing negligence of fellow-servants. 

If the complaint seeks to recover for an injury alleged 
to have been caused by the negligence of the master, it 
need not affirmatively aver that the injury was not caused 
by the negligence of fellow-servants.**^ 



221. Rogers v. Overton, 87 Ind. 
• 410; Louisville E. & St. L. R. Co. 

V. Berry, 2 Ind. App. 427, 28 N. E. 
714. 

222. lAke Shore & M. S. R. Co. 
V. Conway, 67 111. App. 156 (af- 
firmed in 169 lU. 505, 48 N. E. 483). 
It is submitted, however, that this 
<sa8e should not be followed. 

223. Kilberg v. Berry, 166 Mass. 
488, 44 N. E. 603. 

224. Lafayette Carpet Co. v. 
Stafford, 25 Ind. App. 187, 57 N. E. 

■QdA. 

225. RusseU v. Riverside Wor- 
sted Mills, 24 R. I. 591, 54 Atl. 
375. Baumler v. Narragansett 
brewing Co., 23 R. I. 430, 50 Atl. 



841. Donahue v. Lonsdale Co., 25 
R. 1. 187, 55 Atl. 326. 

226. D. H. Davis Coal Co. v. 
PoUand, 158 Ind. 607, 62 N. E. 
492, 92 Am. St. Rep. 319; Blaok- 
stone v. Central of Ga. R. Co., 
105 Ga. 380, 31 S. E. 90; Hanoook 
V. Keene, 5 Ind. App. 408, 32 N. E. 
329; Snowberg: v. Nelson-Spenoer 
Paper Co., 43 Minn. 532, 45 N. 
W. 1131. 

227. libby, MoNeill & libby 
V. Soherman, 146 HI. 540; Hess v. 
Rosenthal, 160 lU. 621, 43 N. E. 
743; Louisville E. & St. L. C. R. 
Co. V. MiUer, 140 Ind. 685, 40 
N. E. 116; Braun v. Conrad Seipp 
Brewing: Co., 72 HI. App. 232. See 



^834 



Pleading. 



2223 



On the other hand, where the complaint shows that the 
injury was caused by another servant, it is necessary in 
most jurisdictions to allege that the latter was not a 
fellow-servant,*** although even in such states an express 
allegation to that effect has been held unnecessary, where 
the facts showing their relation are alleged. **• 

If the injury, as alleged in the complaint, is thereby 
shown to be the residt of the negligence of a co-servant so 
that the action would be barred by the defense of fellow- 
servants in the absence of special circumstances, it is 
necessary to state facts to show that the negligent servant 
comes within the provisions of some statute abolishing such 
defense in his case, or, independent of statute, was not a 



also Cribben v. Callaghan, 156 

m. 549, 41 N. E. 178; Brennan v. 

Berlin Iron Bridge Co., 72 Ck)nn. 

386, 44 Atl. 727; Shaw v. Feltman 

121 App. Div. 597, 106 N. Y. Supp. 

1043. 

228. Roberto & Sohaeffer Co. 

V. Jones, 82 Ark. 188, 101 S. W. 

165; Bennett v. Chicago City R. 

Co., 243 ni. 420, 434 (not ground, 

however, for arresting judgment 

after verdict); Schillinger Bros. 

Co. V. Smith, 225 111. 74; Farber 

V. St. Louis National Stock Yards, 

152 ni. App. 589; Joliet Steel Co. 

V. Shields, 134 UL 209, 25 N. E. 

569; Weaver v. W. L. Goulden 

LogSpDg Co., 116 La. 468, 40 So. 

798; Pittoburgh, C. C. & St. L. R. 

Co. V. Lightheiser, 163 Ind. 247, 

71 N. £. 218, 660; Slattery's Admr. 

V. Toledo & W. R. Co., 23 Ind. 

81; Hagens v. Cape Fear & Y. V. 

R. Co., 106 N. C. 537, 11 S. E. 

590. See also Choctaw, O & G. R. 

Co. V. Doughty, 77 Ark. 1, 91 

S. W. 768; Di Marcho v. Builders 

Iron Foundry, 18 R. I. 514, 27 

AtL 328, 28 AtL 661. Compare, 

Toung V. Shickle, H. & H. I. Co., 
3 M. ft 8.— 16 



103 Mo. 324, 15 S. W. 771; Duffy 
V. EivOin, 98 HL App. 483; Mott 
V. Chicago & M. E. R. Co., 102 
m. App. 412; Dawson v. King 
(Tex. Civ. App.), 121 8. W. 917. 
Allegation that negUgent servant 
of express company was the "agent 
and manager ot the said company's 
office" was held insufficient. Dwyer 
V. American Exp. Co., 55 Wis. 453, 
13 N. W. 471. Not necessary 
where negligent servant shown by 
allegations of complaint to be 
exercising non-delegable duties and 
therefore a vice-principal. Mo- 
Inemey v. Western Packing & P. 
Co., 249 DL 240, 94 N. E. 519. 

229. Chicago & A. R. Co. v. 
Swan, 176 Dl. 424, 52 N. E. 916; 
Louisville, E. & St. L. C. R. Co. v. 
Hawthorn, 147 HI. 226, 35 N. E. 
534; Hathaway v. City of Des 
Moines, 97 la. 333, 66 N. W. 188. 
In Massachusetto, where negli- 
gence of superintendent is relied 
on, declaration must allege the 
facto tending to show that plain- 
tiff and the superintendent were 
not fellow-servanto. Flynn v. 
City of Salem, 134 Mass. 351. 



2224 



Mastbb and Sebvant. 



§834 



fellow-servant of the injured employee because (a) 
exercising non-delegable duties, (b) a superior servant, if 
such rule prevails in the state, or (c) engaged in a dif- 
ferent department or not consociated, if that rule is in 
force. 

For instance, in Kentucky, the complaint should aver 
that the employee whose negligence caused the injury was 
superior to the servant injured (that takes him out of the 
class of fellow-servants), having the right to direct and 
control his services, or facts should be stated from which 
this superior relation can plainly be inferred.**® 

In some states it is held insufficient to merely allege 
conclusions of fact to show the non-existence of the rela- 
tion,*'^ or the conclusion of law that the negligent servant 
at the time of the injury was the vice-principal of de- 
fendant.*" 

If, as matter of fact, the injured servant and the neg- 
ligent servant are fellow-servants, and that is a defense, 
plaintiff, in order to state a cause of action, must allege 
that the master was guilty of negUgence in selecting or 
retaining incompetent servants. *•* 

If the complaint shows on its face that the proximate 
cause of the injury was the negligence of one who was 
a fellow-servant, it is demurrable.*** 



230. Cnme v. T. J. Congleton & 
Bro. (Ky.), 116 S. W. 341. 

231. Bogaid v. LouisviUe, E. & 
St. L. R. Co., 100 Ind. 491. 

232. Higgins v. Missouri Pao. 
R. Co., 104 Mo. 413. 16 S. W. 409. 
Alleging that the negligent serv- 
ant was a foreman and was a vioe- 
prinoipal is insuifioient both be- 
cause stating a oonolusion rather 
than facts, and because not alleged 
that he was a vice-principal as to 
plaintiff where superiority in rank 
was relied on as constituting him 
a vice-prindpaL Suderman A 



Dolson V. Eriger, 50 Tex. Civ. 
App. 29, 109 S. W. 373. 

233. Zier v. Chesapeake R. Co., 
98 Md. 35, 56 Atl. 385. 

234. Whitfield v. Louisville & 
N. R. Co., 7 Ga. App. 268, 66 8. 
E. 973; Turner v. Seville Gin & 
Warehouse Co., 127 Ga. 555, 56 
8. E. 739; Wilder v. MiUer, 128 Ga. 
139, 57 8. E. 309; State v. Chesa- 
peake Beach R. Co., 98 Md. 35, 
56 Atl. 385. Where the complaint 
alleges negligence on the part of a 
servant who is clearly a fellow- 
servant, it is demurrable. Berard 
V. Smith, 29 R. I. 528, 72 Atl. 705. 



^835 



Pleading. 



2225 



§ 835. Alleging unsafe place to work. 

If the ground of negligence relied on is the failure to 
furnish a safe place to work, the complaint properly al- 
leges the violation of such duty, followed by a specific 
statement of the facts to show the existence of the duty 
and wherein the place was unsafe, that defendant knew 
or shoidd have known thereof, ''* that defendant was neg* 
ligent in some particular respect in connection therewith, 
and that such negligence was the efficient cause of the 



288 



mjury, 

In alleging an unsafe place to work, the better practice 
is to first aver the existence of the duty and then allege 
that the employer failed to comply with such duty in that 
it negligently conducted the work, specifying the par- 
ticulars showing the breach of the duty. But if the par- 
ticidar in which the place was unsafe is alleged, the 
evidence in support thereof need not be pleaded. ^'^ 

If a defect in the floor of the place of work is relied on, 
it has been held that the complaint shoidd state the 
character of the defect ;''^ but where the breaking of a 
bridge was relied on as the negligence causing the injury, 
it was held that the nature of the defect in the bridge 
need not be 8i)ecifically described. *•• 

In Alabama, alleging that ''defendant negligently 
failed to furnish plaintiff with a reasonably safe place to 
work" has been held sufficient as against the objection 
that it is not shown how or wherein defendant so failed. '^ 

It is not fatal to fail to allege the place where the work 
was located, since it is a matter as much in the knowledge 
of defendant as of plaintiff. '^^ 



235. See aupra, S 829. 

236. See Wild v. Orefi^on Short 
line & U. N. R. Ck>., 21 Oreg. 159, 
27 Pao. 954. It is not suffioieiit to 
allege that an electric light pole 
was "too near the track." Black- 
stone Y. Central of Ga. R. Co., 105 
Qa.380. 

237. Cristanelli v. Saginaw Min- 
ing Co., 154 Mich. 423, 446, 119 
N. W. 910, 



238. Esslinger v. Boehm, — N. 
J. L. — , 79 Atl. 267. 

239. Birmingham Rolling Mill 
Co. Y. Rockhold, 143 Ala. 115, 42 
So. 96. 

240. Gray Eagle Coal Co. y. 
Lewis, 161 Ala. 415. 

241. City Council of Augusta y. 
Owens, 111 Ga. 464, 36 S. £. 830. 



2226 



Ma8tbb Ain) Sebvant. 



§836 



It should be alleged that defendant failed to use rea- 
sonable care in furnishing a safe place to work rather than 
that he failed to furnish a reasonably safe place to work. ^^' 

However, alleging that defendant ''negligently and 
wrongfully failed to provide a reasonably safe place to 
work" has been held a sufficient statement of failure to use 
ordinary care.*** 

§ 836. Alleging unsafe appliances. 

Where unsafe tools, machinery or other appliances are 
the cause of the accident, the complaint properly alleges 
the duty of the master to use reasonable care to supply 
safe appliances,*** and then should describe the appli- 
ance charged to be defective,**^ allege that it was fur- 
nished by defendant*** and was defective,**^ set forth the 
defect in the appliance,*** and allege or show that defend- 



242. Merriweather v. Sayre 
Mining & Mfg. Ck)., 161 Ala. 441. 

243. Trump v. Tidewater Coal 
& Coke Co., 46 W. Va. 238, 32 S. 
E. 1035. 

244. But it is not ordinarily 
neoessary to state this legal con- 
clusion. Cedartown Cotton & 
Export Co. Y. Miles, 2 Ga. App. 
79, 58 S. E. 289. 

245. More details are required 
when the instrumentality is not 
a simple and weU known contriv- 
ance than when it consists of some- 
thing that people generally, from 
their common knowledge, under- 
stand in detail without elaboration 
or description. However, it is not 
neoessary to go into details of 
description, except so far as may 
be necessary to show the relation 
of the instrumentality to the duties 
of the servant, the specific mode of 
the injury, the exact nature of the 
defect, the negligence of the master, 
the lack of contributory negligence 
of the servant or some other es- 



sential element of the case. Cedar- 
town Cotton & Export Co. v. 
Miles, 2 Ga. App. 79, 58 S. E. 289. 

246. Where the furnishing of a 
defective appliance is relied on, 
it must be averred that the appli- 
ance was furnished or provided by 
the master and also connect the 
injury with the alleged defective 
condition. Huyck v. McNemey, 
163 Ala. 244. 

247. A direct averment is nec- 
essary. It must not be left to in- 
ference. Hay V. Bash, 37 Ind. App. 
167, 76 N. E. 644. 

248. Walton v. Lindsay Lumber 
Co., 145 Ala. 661, 39 So. 670; An- 
derson V. United States Rubber 
Co., 78 Conn. 48, 60 Atl. 1057; 
Cedartown Cotton & Export Co. 
V. Miles, 2 Ga. App. 79, 58 S. E. 
289, holding also that it should 
appear, by facts stated and not 
conclusions, whether the defect 
was latent or patent. See also Hix 
V. Belton Mills, 69 S. C. 273, 48 
S. E. 96. Where mere conclusion 



^836 



Pleading. 



2227 



ant was negligent either in originally furnishing the appli- 
ance, or in not inspecting and repairing it, and that 
such negligence was the cause of the injury, including a 
specific statement as to how the injury occurred, **• 



stated, remedy is not demuirer 
but motion to make more definite 
and oertain. Burton v. Anderson 
Phosphate & Oil Ck>., 75 S. C. 173, 
55 S. £. 217. "Good ideading re- 
quires in suoh ease a definite state- 
ment of the partioular defect, so 
far as it may be practicable to state 
it, which caused the injury, to the 
end that defendant may know what 
daim he is to meet, and to which 
the evidence is to be directed. 
There may be cases of a compli- 
cated machine, where it may not 
be practicable or even possible 
to allege with certainty the identi- 
cal defect causing the injury, but 
even in such case it may be stated 
in sufficiently specific terms to 
indicate to the defendant the charge 
he is called upon to meet, — or the 
difficulty may be obviated by sever- 
al counts, with such variations as 
circumstances may require." Mo- 
Graw V. Great Northern Paper Co., 
97 Me. 343, 54 Atl. 762. A defect 
in a machine may be described by 
showing that the machine was in 
such condition that it produced 
certain definitely described re- 
sults which a machine not defective 
would not and should not produce. 
It is not necessary to describe 
minutely or particularly the phys- 
ical appearance of the parts claimed 
to be defective. Charleston & W. 
C. R. Co. V. Attaway, 7 Ga. App. 
231, 66 S. E. 548. Alleging that a 
switch look was "old, worn out. 



out of repair, broken and imsafe*' 
is sufficient. Ohio & M. R. Co. 
V. Heaton, 137 Ind. 1, 35 N. E. 
687. Where the alleged defect in 
a pulley was not an open and 
obvious one, it was sufficient to 
allege that it was wholly insuffi- 
cient in both size and strength, 
which was known to defendant 
but was unknown to plaintiff who 
could not discover it. Indiana 
Bituminous Coal Co. v. Buffey, 
28 Ind. App. 108, 62 N. E. 279. 

In Rhodb Island, however, 
alleging an appliance furnished 
was ''unsafe, dangerous and wholly 
unfit," to the knowledge of the 
defendant, has been held sufficient 
without specifying the particular 
defect. Berard v. Smith, 29 R. I. 
528, 72 Atl. 705. 

So, IN Texas and bomb othbr 
STATES, the partioular defect in 
the appliance need not be alleged. 
San Antonio & A. P. R. Co. v. 
Beauchamp (Tex. Civ. App.), 116 
S. W. 1163; Galveston, H. & S. 
A. R. Co. V. Templeton, 87 Tex. 
42, 26 S. W. 1066; Missouri, K. 
& T. R. Co. V. Barnes, 42 Tex. 
Civ. App. 626. 95 S. W. 714; Mer- 
ritt V. American Woolen Co., 71 
N. H. 493, 53 Atl. 303. 

249. The complaint should show 
that the defect was such as would 
have been discovered by the mas- 
ter by a proper inspection. Eagle 
& Phenix Mills v. Johnson, 131 
Ga. 44, 61 S. E. 990. 



2228 



Masteb and Sebvant. 



§836 



So, in most jurisdictions, it must be alleged or shown 
that the master had actual or constnictiye knowledge of 
the defect.*" 

And in some jurisdictions it may be necessary to nega- 
tive the existence of contributory negligence,*^* or assump- 
tion of risk,"* or both. 

However, if the defects are unknown to plaintiff, of 
course he need not speoity them.*" 

So where the defect is particularly described, the com- 
plaint need not allege whether the defect jras in con- 
struction or arose from want of repair.*^* 

Likewise, where failure to furnish suitable tools is relied 
upon, it is unnecessary to aver what the tools were.**^ 

And where improper construction of the appliance is 
relied on, it has been held sufficient to merely allege that 
it was insufficiently, carelessly and negUgently con- 
structed, and of unfit material ;*^^ but it is insufficient to 
allege negligent construction merely by inference.**^ 

It has been held not sufficient to merely allege failure to 
fiunish safe and suitable machinery and appliances for 
performing a specified act. *** 

Where the complaint is otherwise sufficient, it is not 
vitiated by containing the erroneous statement of the law 
that it was the duty of the defendant to use the best, 
safest and strongest appliance available. *" 



250. See supra, $ 829. 

251. See supra, $ 833. 

252. See supra, § 832. 

263. Wabash & W. R. Co, v. 
Morgan, 132 Ind. 430, 31 N. E. 
661; Cos v. Providence Gas Co., 
17 R. I. 199, 21 Atl. 344; Gulf, C. 
& S. F. R. Co. y. Hayden, 29 Tex. 
Civ. App. 280, 68 S. W. 630. 

264. Gutiridge v. Missouri Pao. 
R. Co., 94 Mo. 468, 7 S. W. 476, 
4 Am. St. Rep. 392. 

266. Richmond Looomotive 
Works V. Ford, 94 Va. 627. 



256. Preston v. St. Johnsbury & 
L. C. R. Co., 64 Vt. 280, 25 Atl. 
486. See also Carey v. Chioago 
& N. W. R. Co.. 67 Wis. 208, 31 
N. W. 163. 

267. MoElwaine-Riohards Co. 
V. WaU, 159 Ind. 557, 65 N. E. 753. 

268. De Luoa v. Hughes, 96 
Fed. 923. 

259. Henne v. Steeb Shipping 
Co., 37 Wash. 331. But see Nor- 
folk A W. R. R. Co. V. Jaokson's 
Admr., 86 Va. 489. 



^837 



Pleading. 



2229 



In Georgia, under the code, the petition need not di- 
rectly allege that the machinery was not equal in kind to 
that in general use.^*^ 

If a defect in one thing is alleged and a defect in another 
part of the plant is proved, a recovery cannot be had 
without an amendment of the complaint. ^'^ 

Under statutes. 

Where the statute fixes the liability, the allegations of 
the complaint must correspond therewith.*** 

§ 837. Failure to warn or instruct servant. 

Where the negligence of the master relied on is the 
failure to warn or instruct the injured servant, the facts 
showing the existence of a duty to warn or instruct must 
be stated, it not being sufficient to merely allege the ex- 
istence of the duty.**' 



200. Southern States Cement 
Co. y. HelmB, 2 Ga. App. 308, 58 
8. £. 524. 

261. Waldhier v. Hannibal & 
8t. J. R. Co., 71 Mo. 514. 

262. See infra, § 843, defects 
in condition of ways, works, ma- 
chinery, etc 

263. Fortin V. Manvnie Co., 128 
Fed. 642. But in niinois it is held 
suificient to allege failure to give 
warning that a car was about to 
strike the car on which plaintiff 
was working unloading cinders, 
and that such omission caused his 
injury, without alleging other facts 
to show the duty to giye such 
warning. Chicago & £. I. R. Co. 
V. Eimmel, 221 Dl. 547, 77 N. E. 
036. Complaints held suificient, 
see Alabama Mineral R. Co. v. 
Marcus, 128 Ala. 356, 30 So. 679; 
Pigeon ▼. W. P. Fuller & Co., 156 
Cal. 601; Seininski ▼. Wilmington 
Leather Co. (Del.), 78 Atl. 296; 
Anderson v. United States Rubber 



Co., 78 Conn. 48, 60 Atl. 1057; 
MiUedgeviUe Ofl Mills y. Wilkin- 
son, 134 Ga. 840, 68 S. E. 733; 
Blout Carriage & Buggy Co. v. 
Ware, 125 Ga. 571, 54 S. E. 637; 
Danley v. Scanlon, 116 Ind. 8, 
17 N. E. 158; Fletcher Bros. Co. 
V. Hyde, 36 Ind. App. 96, 75 N. 
£. 9; Davis v. Queen City Furni- 
ture Mfg. Co., 116 La. 1070, 41 
So. 318; Schoner v. Allen, 25 Okla. 
22, 105 Pac. 191; Gince v. Belaud, 
25 R. I. 527, 57 Atl. 300; Whitelaw 
v. Memphis & C. R. Co., 84 Tenn. 
391, 1 S. W. 37; Commerce Cotton 
Oil Co. y. Camp (Tex. Civ. App.), 
129 S. W. 852; GreenviUe Oil & 
Cotton Co. V. Harkey, 20 Tex. 
av. App. 225, 48 S. W. 1005; 
Hillsboro Oil Co. v. White (Tex. 
Civ. App.). 54 S. W. 432; Bonner v. 
Moore, 3 Tex. Civ. App. 416, 22 
S. W. 272; White v. San Antonio 
Waterworks Co., 9 Tex. Civ. App. 
465, 29 S. W. 252; Chesapeake & 
O. R. Co. V. Melton, 110 Va. 728, 



2230 



Masteb and Sebyaht. 



§837 



But where the facts alleged show the duly, and that the 
injury resulted from a failure to perform such duty, it is 
not necessary to si)ecifically aver the existence of such 
duty and the negligent failure to discharge it.^*^ 

The complaint must show a duty to warn, ^'^ and hence 
it must be shown that the injured servant, because of his 
youth or inezperience or other reason, did not know of 
the danger. 

The complaint must negative knowledge of the danger 
by plaintiff.*" 

The complaint must allege or show that the master 
or his representatives knew, or should have known, of the 
ignorance of the danger on the part of the injured serv- 
ant;**^ but in some states it has been held that an allega- 
tion that after a servant was directed to do more dangerous 
work defendant "wrongfully and negligently" failed to in- 
struct plaintiff in the discharge of his duty, is sufficient.**' 



67 S. E. 346; Coeur d'Alene Lumber 
Co. y. Goodwin, 181 Fed. 949. 
Count for defeotiye maohinery is 
not inoonoBtent with count for 
failure to warn servant of danger 
of using it. Ruddy v. Oeorge F. 
Blake Mfg. Co., 205 Mass. 172, 
91 N. E. 310. 

264. Postal Tel. Cable Co. v. 
Hulsey, 132 Ala. 444, 31 So. 527. 

265. Laoy-Buek Iron Co. v. 
Holmes, 146 Ala. 96; Forquer v. 
Slater Brick Co., 37 Mont. 426, 
97 Pao. 843. 

266. Horan v. Gray & Dudley 
Hardware Co., 159 Ala. 159; 
Brazil Block Coal Co. v. Young, 
117 Ind. 520, 20 N. E. 423; Becker 
v. Baumgartner, 5 Ind. App. 576, 
32 N. E. 786; Brainard v. Van 
Dyke. 71 Vt. 359, 45 Atl. 758. 
Alleging inexperience in the use of 
machinery is not equivalent to 
alleging inexperience in the use 
of the machine plaintiff was oper- 



ating. W. B. Conkey Co. v. Lar- 
sen, 173 Ind. 585, 91 N. E. 163. 

267. Peterson y. New Pitts- 
burg Coal & Coke Co., 149 Ind. 
260, 49 N. E. 8, 63 Am. St. Rep. 
289; La Porte Carriage Co. y. 
SuUender, 165 Ind. 290, 75 N. E. 
277. If the complaint relies on 
the failure to warn as constituting 
negligence, it must allege that de- 
fendant or his representatiye knew 
of the danger and that plaintiff 
was inexperienced or in need of a 
warning. Tennessee Coal, I. & 
R. R. Co. y. Williamson, 164 Ala. 
54. Where failure to warn a youth- 
ful employee is relied on, the 
master's knowledge of his inex- 
perience must be alleged. Louis- 
yille & N. R. Co. y. Wilson, 162 
Ala. 588. 

268. Trump y. Tidewater Coal 
& Coke Co., 46 W. Va. 238, 32 
S. E. 1035. An allegation that de- 
fendant negligently failed to warn 



$838 



Pleading. 



2231 



So the complaint must allege or show that defendant 
had, or should have had, knowledge of the danger;^** 
but it need not allege knowledge on the part of defendant 
of the danger if the facts actually alleged show that he 
should have known thereof. ^''^ 

The complaint must also allege or show that the 
failure to warn was the cause of the injuries. '^^ 

But failure to allege the particular danger to be appre- 
hended, or the particular warning required, does not 
render the complaint insufficient, at least in the absence 
of a si)ecial demurrer for uncertainty.*^* 

If the complaint does not allege facts showing a duty 
to warn and a breach thereof, a recovery cannot be had 
on that ground. *^' 

§ 838. Failure to makei promulgate or enforce rules. 

If the negligence relied on is the failure of the master 
to make, promulgate or enforce suitable rules, the facts 
showing the breach of duty must be alleged, it not being 
sufficient to allege merely the legal conclusion. *^^ 

However, plaintiff need not allege exactly what rules 
should have been made.*^^ 

The allegations must be consistent with each other. *^* 



plaintiff is an averment that de- 
fendant knew, or should have 
known, that plaintiff stood in need 
of warning. Pigeon v. W. P. 
Fuller & Co., 156 Cal. 601. 

260. W. B. Conkey Co. v. Lar- 
sen, 173 Ind. 585, 01 N. E. 163; 
Johnston v. Enterprise Mfg. Co., 
130 Qa. 143, 60 S. E. 440. 

270. See Robinson Min. Co. v. 
Tolbert. 132 Ala. 462. 31 So. 510. 

271. Diokerson v. Eastern Ken- 
tucky L. Co., 133 Ky. 820, 110 S. 
W. 222, 121 S. W. 662; Peerless 
Stone Co. v. Wray, 10 Ind. App. 
324, 37 N. E. 1058. 

272. Forquer v. North, 42 
Mont. 272, 112 Pao. 430. 



273. Fulwider v. Trenton Gas, 
L. & P. Co., 216 Mo. 582, 116 S. 
W. 508. 

274. Delaware, L. & W. R. Co. 
▼. Voss, 62 N. J. L. 50, 41 Atl. 224. 
Petition held to state cause of ac- 
tion, see Reagan v. St. Louis, K. & 
N. R. Co., 03 Mo. 348. Complaint 
and answer held to raise issue as 
to promulgation of rule. Lindsay 
V. Grand Ronde Lumber Co., 48 
Or. 430, 87 Pac. 145. 

275. Texas & P. R. Co. v. 
Cumpston, 15 Tex. Civ. App. 403, 
40 S. W. 546. 

276. Rutledge v. Missouri Pao. 
R. Co., 110 Mo. 312, 10 S. W. 38. 



2232 



Masteb and Sebyant. 



§839 



If the negligence alleged consists in the violation of 
one of defendant's rules, the precise language of the rule 
need not be set forth. *^^ 

§ 839. Alleging employment or retention of incompe- 
tent servant 

If the negligent servant is a fellow-servant of the 
injured servant so as to ordinarily bar a recovery, one 
way in which plaintiff can recover, in a proper case, is 
to allege that the master was negligent in employing or 
retaining such servant and that he was incompetent.^'^ 

If not so pleaded, plaintiff camiot recover on this 
ground. *" 

The complaint must allege or 3how the following:'^ 
(1) that the negligent servant was incompetent;'^^ (2) 



277. Galveston, H. & S. A. R. 
Co. ▼. Eaner (Tex. Civ. App.), 70 
S. W. 328. 

278. Substantive law, see vol. 

1. §§ . 

279. City of Qreeley v. Poster, 

32 Colo. 292, 75 Pao. 351; Smith v. 
Bibb Mfg. Co., 112 Ga. 680, 37 S. 
E. 861; Troughear v. Lower Vein 
Coal Co., 62 la. 676, 17 N. W. 775; 
Elwell V. Haoker, 80 Me. 416, 30 
Atl. 64; Lawler v. Androscoggin 
R. Co., 62 Me. 463, 16 Am. Rep. 
492. 

280. See Conrad v. Gray, 109 
Ala. 130, 19 So. 398; Van Dyke v. 
Menlo Fruit Co., 129 Ga. 532, 59 
8. E. 215; Ellington v. Beaver 
Dam Lumber Co., 93 Ga. 53, 19 S. 
E. 21; Kerlin v. Chicago, P. & St. 
L. R. Co., 50 Fed. 185; Hall v. 
Bedford Quarries Co., 156 Ind. 460, 
60 N. E. 149; Bogard v. Louisville, 
E. & St. L. R. Co., 100 Lid. 491; 
Lake Shore & M. S. R. Co. v. Stu- 
pak, 123 Ind. 210, 23 N. E. 246. 
•Compare Dossett v. St. Paul & Ta- 



coma Lumber Co., 40 Wash. 276, 
82 Pao. 273; Blake & Maine Cent. 
R. Co., 70 Me. 60, 35 Am. Rep. 
297. Forms of complaints set out 
in ease and held sufficient where 
negligence alleged was employment 
of incompetent fellow-servants, see 
Pennsylvania Coal Co. v. Bowen, 
159 Ala. 165, 166, 49 So. 305; Peter 
V. Middlesex & S. Traction Co., 
69 N. J. L. 456, 65 Atl. 35. 

281. Alleging that superior 
servant was advised that injured 
servant was habitually negligent 
and of general bad habits is not 
equivalent to alleging incompe- 
tency. KidweU v. Houston & G. 
N. R. Co., Fed. Cas. No. 7757. 
Alleging that he was "negligent and 
careless" is not equivalent to alleg- 
ing that he was "incompetent." 
Kelly V. Cable Co., 13 Mont. 411, 
34 Pac. 611. Allegations held suf- 
ficient, see Conover v. Neher-Ross 
Co., 38 Wash. 172, 80 Pac. 281, 107 
Am. St. Rep. 841. 



§839 



Pleading. 



2233 



that the master knew, or should have known, of such 
incomi)etency;*'* and (3) that the incompetency of such 
servant was the cause of the injury.**' 

Alleg^ing that plaintiff did not know of the incompe- 
tency of the negligent servant is necessary only in those 
states where the complaint must negative assumption 
of risk."* 

On the other hand, the complaint need not state the 
names and positions of the officers of the corporation 
alleged to have knowledge of the incompetency,**' nor 
need it aver that it was a part of the duties of such fellow- 
servant to be skillful at the work for which he was em- 
ployed."* 

So it need not set out the particulars of the servant's 
incompetency,**^ nor state the exact time the master 
knew of such incompetency.*** 

But the mere conclusion that plaintiff's injuries re- 
sulted from the emplojnoient of incompetent servants 
is not a sufficient allegation.*** 



282. Bell V. Globe Lumber Co., 
107 La. 725, 31 So. 994; Harris v. 
Balfour Quarry Co., 131 N. C. 
663, 42 S. E. 973. But see Flynn 
y. Litemational Power Co., 24 R. 
I. 291, 62 Atl. 1089. Li Texas it 
has been held that an allegation 
that the aot of employing a servant 
was done in a oareless and negligent 
manner, and that in oonsequenoe 
thereof an inoompetent servant 
was taken into the master's service, 
is sufficient without escpressly alleg- 
ing that defendant knew, or oould 
have known, of the incompetency. 
Gkdveston Rope & Twine Co. v. 
Burkett, 2 Tex. Civ. App. 308, 21 
8. W. 968. 

283. Crane v. T. J. Congleton 
A Bro. (Ey.), 116 S. W. 341. See 
Kasadarian v. James £011 Mfg. Co., 
130 Fed. 62; Fitts v. Waldeok, 61 



Wis. 667, 8 N. W. 363. Complaint 
held to sufficiently show inoomi>e- 
tenoy was cause of injury, see Rail- 
road Supply Co. V. Elofski, 138 
m. App. 468; Galveston, H. & S. 
A. R. Co. V. Eckels, 7 Tex. Civ. 
App. 429, 26 S. W. 1117. 

284. See supra, § 832. 

286. Lake Shore & M. S. R. 
Co. V. Stupak, 123 Ind. 210, 23 N. 
E. 246. 

286. Lidianapolis Frog & Switch 
Co. V. Boyle, 18 Ind. App. 169, 47 
N. E. 690. 

287. Johnston v. Canadian Pa- 
dfio R. Co., 60 Fed. 886. 

288. Wabash W. R. Co. v. 
Morgan, 132 Ind. 430, 31 N. E. 
661. 

289. Sloss-Sheffield Iron Co. v. 
Smith, 166 Ala. 437. 



2234 



Master and Sebyant. 



§840 



While the complaint must allege that the master knew 
of the incompetency, or by the exercise of reasonable 
care could have known, it is not necessary that these 
exact words should be used.^ 

Of course, if the negligent servant is a vice-principal, 
it need not be alleged that he was *^incomi)etent" or 
that his incompetency was known to the master. ^^ 

An averment that the defendant lailed to exercise 
ordinary care in the selection of its servants is the proper 
form of allegation rather than failure to select competent 
servants.*** 

§ 840. Insufficient number of servants. 

Where the negligence relied on is the failure of defend- 
ant to provide a sufficient number of servants to do the 
work with safety, the complaint must allege the facts 
showing the nature of the work plaintiff was engaged 
in, the failure to provide a sufficient number of co-serv- 
ants, the injury as resulting from such failure, and the 
nature of the injury. *•• 

The complaint must charge a breach of the duty;**^ 
but it IS sufficient to allege the negligent acts relied on 



290. Pennsylvania Coal Co. v. 
Bowen, 159 Ala. 165. 

291. Harris, v. Quarry Co., 137 
N. C. 204, 49 S. E. 95. 

292. Moss V. Paoiflo R. R., 49 
Mo. 167, 8 Am. Rep. 126. 

293. In Alabama Great So. R. 
R. Co. y. VaU, 142 Ala. 134, 38 So. 
124, 110 Am. St. Rep. 23, the count 
demurred to, set forth in the state- 
ment of faots, while very general, 
was held not subject to demurrer, 
although it is doubtful if it would 
be deemed su£Qcient in other states, 
inasmuch as it failed to allege or 
show what number of men defend- 
ant furnished for the job, and also 
what number of men it was neces- 
sary to furnish to do the job without 



injury. In Supple ▼. Agnew, 191 
lU. 439, 61 N. E. 392, the substance 
of the declaration is set forth at con- 
siderable length and it was held to 
state a cause of action. In that 
ease it was alleged that "said car- 
penter and plaintiff and one addi- 
tional person were not a sufficient 
number of persons to move said 
timber properly and with safety 
to plaintiff." In Harper v. Nor- 
folk & W. R. Co., 36 Fed. 102, a 
mere general conclusion seems to 
have been held to be sufficient. 

294. See Cristanelli v. Saginaw 
Mining Co., 154 Mich. 423, 437, 
117 N. W. 910, where breach is set 
out at some length. 



§§841, 842 Pleading. 2235 



and the result, without stating the evidence relied on 
to sustain the allegations.^^ 

§841. Employment of infants. 

In some cases it is negligence to employ one of tender 
years, irrespective of statute and notwithstanding he has 
been properly warned, as where he is incapable of appre- 
ciating the risk and danger even after being properly 
instructed and warned. In such a case, the complaint 
should set forth the facts showing the nature of the 
work plaintiff was employed to do, his age and inexperi- 
ence, and the instructions given him. It has been held 
that to merely allege that the emplosncnent of an infant 
of the age of eight years was negligence per se is a mere 
conclusion of law and insufficient.^* 

§ 842. Wanton or wilful negligence. 

It has been stated that contributory negligence is no 
defense where the master or his servant, with actual 
knowledge thereof, is afterwards so negligent as to cause 
the injury.**^ 

This phase is often referred to as wanton or wilful 
negligence, especially in Alabama, and contributory 
negligence is no defense. If such negligence is relied 
on the facts relating thereto should be set forth and the 
negligence should be characterized as wanton or wilful. 
But a count alleging that the injuries were caused by 
wanton or intentional negligence, instead of wanton or 
wilful, is sufficient.*** 

The addition of the words ^'reckless, gross and wrong- 
ful", while entirely unnecessary, is harmless, since not 
repugnant to the words *Vanton, wilful or intentional- ';*•• 
but where all these words are used in one count it is 

295. Galveeton, Houston & S. 208. Alabama Great So. R. Co. 
A. R. Co. V. Bonn, 44 Tex. Ciy. v. Williams, 140 Ala. 230, 37 So. 
App. 631, 99 S. W. 413. 255. 

296. Martello v. Fusoo, 21 R. 299. Louisville & N. R. Co. ▼• 
I. 572, 45 Ail. 577. Oir, 121 Ala. 489. 

297. See supra, . 



2236 



Masteb and Sebyakt. 



^843 



objectionable on the ground of joinder of different causes 
of action in one count.** 

Actual as distinguished from constructive knowledge 
of the danger on the part of the master or negligent 
servant must be alleged. '^^ 

§ 843. Violation of statutes or ordinances. 

There are in force in nearly all the states one or more 
statutes enacted for the protection of employees and 
requiring employers to do certain things, such as fur- 
nishing automatic couplers, safeguarding dangerous ma- 
chinery, protecting elevators, precautions to be taken 
in mines, etc. So in many states there is a statute 
forbidding the employment of children under a specified 
age, at least in certain dangerous lines of work. Some 
of these statutes expressly provide that assimiption of 
risk or contributory negligence, or both, shall not be a 
defense, and in some jurisdictions it is so held although 
there is no such provision in the statute. Of course, if 
such defenses are not available they need not, in any 
state, be negatived in a complaint based on such a stat- 
ute. In preparing a complaint under such a statute 
it is advisable to use the language of the statute so far 
as possible and to set forth facts which clearly bring the 
case within the terms of the statute.*'^ 

However, it is not necessary to cite or refer to the 
statute relied on,*^' but it is sufficient to plead such acts 



300. Alabama Great So. R. Co. 
V. WiUiams, 140 Ala. 230, 37 So. 
255. 

301. Southem R. Co. v. Bunt. 
131 Ala. 591. 

302. Suffidenoy of complaint 
alleging employment of ohild under 
14, flee La Porte Carriage Co. v. 
Sullender, 165 Ind. 290, 75 N. E. 
277. Where the employment of a 
child under the statutory age is 
relied on, the complaint must aver 
facts from which an employment 
prohibited by the statute appears. 



Van Wyck v. Dickinson, 148 Mich. 
418, 111 N. W. 1033. 

303. Lore v. American Mfg. 
Co., 160 Mo. 608, 61 S. W. 678; 
Voelker v. Chicago, M. & St. P. R. 
Co., 116 Fed. 867; Fowler Packing 
Co. V. Enzenperger, 77 Kan. 406, 
94 Pac. 995, where factory act was 
relied on; Bromberg v. Eyans 
Laundry Co., 134 la. 38. Ill N. W. 
417; Flanagan v. F. W. Carlin 
Const. Co., 134 App. Div. 236, 118 
N. T. Supp. 953; Severson v. Hill- 
Wamer-Fitch Co., 116 App. Div. 



§843 



Pleading. 



2237 



of negligence as bring the case within the rule of the 
statute. ~* 

It has been held unnecessary to allege in what manner 
the failure to comply with the statute caused the in- 
jtiry.~* 

Where the violation of an ordinance is relied on, the 
general rules relating to pleading ordinances are appli- 
cable, and need not be alleged that if the ordinance had 
been complied with the plaintiff would not have been 
injured. *^* 

Allegations under fellow-servant statutes. 

In many cases a recovery would be barred if it were 
not for the existence of a statute wholly or in part abol- 
ishing the defense of fellow-servants. In such a case 
it IS not necessary in the complaint to specifically refer 
to the statute relied upon, ^^ but plaintiff must positively 
and directly aver facts showing that the action falls 
within the particular subdivision on which he reUes,~« 



108, 101 N. T. Supp. 808. But see 
Rogers v. Portland Lumber Co., 54 
Or. 387, 102 Pac. 601, 103 Pao. 514. 

304. Sohradin v. New York 
Cent. & H. R. R. Co., 124 App. 
Div. 705, 109 N. Y. Supp. 428, 
holding that aot of 1006 as to rail- 
road vioe-prinoipala need not be 
pleaded. 

305. Mobile, J. & K. C. R. Co. 
y. Bromberg, 141 Ala. 258, 37 So. 
3d5. 

306. Pittsburg, C. C. & St. L. 
R. Co. y. Lighiheiser, 163 Ind. 247, 
71 N. E. 218, 660. See also Pitts- 
burg, C. C. & St. L. R. Co. y. 

Rogers, Ind. App. , 87 N. 

E. 28, holding that complaint 
showed ordinanoe was in foroe; 
Chicago, I. & L. R. Co. y. Cobler, 
39 Ind. App. 506, 80 N. E. 162, 
holding substance of ordinance 
must be alleged. 



307. See section on ."Violation 
of statutes or ordinances," supra. 
The 1906 statute in New York 
making certain employees of rail- 
road oomiMUiies, yice-prindpals, 
need not be pleaded. Inglese y. 
New York, N. H. & H. R. Co., 133 
App. Div. 198, 117 N. Y. Supp. 
392. 

308. Chicago, I. & L. R. Co. v. 
Barnes, 164 Ind. 143, 73 N. E. 91. 
Where a servant relies for recovery 
upon a special statute creating a 
liability where none existed before, 
he must set forth in ordinary and 
concise language a statement of 
facts showing his right to recover 
imder that statute. Kelly v. North- 
em Pao. R. Co., 35 Mont. 243, 88 
Pac. 1009 [followed in Thurman v. 
Pittsburg & M. Copper Co., 41 
Mont. 141, 108 Pao. 588. In Ala- 
bama, the complaint need not 



2238 



Master and Sebvant. 



^843 



and while it is unneoessary to use the precise words of 
the statute, yet such words or words equivalent thereto 
must be used, ^ and it is the better practice to generally 
use the precise words if possible. 

The complaint must show on its face whether it is 
based on the common law duty of the master or whether 
it is based on a statute; and if it is based on a statute 
it should clearly show which statute, or which subdi- 



state the name of the person whose 
act in obeying negligent instrao- 
tions caused the injury. Reiter- 
Connolly Mfg. Co. v. Hamlin, 144 
Ala. 192, 213, 40 So. 280. In Mon- 
tana, where a oomplaint aUegee 
negligence on the part of a railroad 
company, without mentioning the 
negligence of any employee, and a 
recovery cannot be had at common 
law because the negligent servant 
was a fellow-servant, the complaint 
is insufficient as one under the fel- 
low-servant statute, and proof 
thereunder that the nefi^igenoe was 
that of an engineer, within the 
statute, is inadmissible. Kelly v. 
Northern Pao. R. Co., 35 Mont. 
243, 88 Pac. 1009. 

309. Southern Indiana R. Co. 
V. Martin, 160 Ind. 280, 66 N. E. 
886. It is not necessary, in order 
to plead a cause of action imder the 
Emi>loyer's Liability Act, that its 
precise language should be made 
use of, provided that it appear 
plainly from what is alleged that 
the cause of action was within the 
provisions of the act and that its 
requirements of the giving of a no- 
tice to the defendant has been com- 
plied with. The following state- 
ments and allegations in substance 
in a complaint were held sufficient: 
That the plaintiff was directed by 



the defendant, a foreign corpora- 
tion, in whose employ he was, to 
enter an elevator "which the de- 
fendant had constructed and then 
had under its supervision and con- 
trol," that the elevator was negli- 
gently constructed by the defend- 
ant **in that the steel rope or cable 
by which the elevator car was sus- 
pended . . . was loosely . . . 
and improperly fastened to the top 
of the car and that the safety appli- 
ances . . . had not been at- 
tached thereto"; that by reason 
of the defendant's negligence "in 
directing the plaintiff to enter the 
car while it was in that condition" 
and without fault on plaintiff's 
part, the "cable became unfastened 
from the elevator" and the oar feU, 
and that by reason of the premises 
the plaintiff sustained certain in- 
juries. The final iMuragraph of the 
complaint alleged that "within 120 
days after the occurrence of the 
said accident . . . and on the 
18th day of March, 1903, due notice 
in writing of the time, place and 
cause of the injury was given to the 
defendant in the manner provided 
by and pursuant to chapter 600 of 
the laws of 1902. Harris v. Bait. 
Mach. & El. Works, 188 N. T. 141, 
80 N. E. 1028. 



§843 



Pleading. 



2239 



vision of the statute it is based upon,''^ although no 
si)ecific reference need be made thereto. '^^ 

Federal interstate commerce act. 

The 1908 federal employer's liability act, relating to 
interstate conmierce and the territories, has already been 
referred to and construed.*" 

If this statute is relied on it, the facts to bring the case 
within the statute must be specially pleaded, but the 
complaint need not mention or refer to the statute.'^' 

It must allege, inter alia, that the defendant was a 
common carrier engaged in interstate conmierce by rail* 
road;'^^ although it has been held that plaintiff may 
allege that whether defendant was engaged in interstate 
conmierce was a matter about which plaintiff had no 
knowledge or information, under the rule that where a 
fact is peculiarly within the knowledge of defendant, 
plaintiff is relieved from the necessity of using that 
degree of accuracy and certainty which would be re- 
quired if the facts were known to him.*" 

Statutes as to defects in condition of ways, works, 
machineryi etc. 

A complaint based on the provisions of the Employer's 
Liability Acts of Alabama, Massachusetts, New York, 
New Jersey or Vermont, making the master liable, under 
certain conditions, where the injury results from defects 



310. 81o88-Sheffield Steel & Iron 
Co. V. Smith, 166 Ala. 437, 52 
8o. 38. 

311. While the oomplaint, or 
each oount thereof, need not ex- 
plidtly state under which subdi- 
viflion of the Employer's liability 
Aot he seeks to reoover, or whether 
he seeks to reoover under the mas- 
ter's oommon law liability, yet the 
complaint and each oount should 
be reasonably certain in its aver- 
ments as to the particular liability 

sought to be enforced. Sloss-Shef- 
8 M. & S.— 17 



field Steel & Iron Co. v. Smith, 166 
Ala. 437, 52 So. 38. 

312. See supra, . 

313. If the complaint alleges a 
cause of action under the federal 
statute, it is immaterial that the 
pleading does not mention the 
statute. Smith v. Detroit & T. S. 
L. R. Co., 175 Fed. 606. 

314. Walton v. Southern R. 
Co., 179 Fed. 175. 

315. Missouri, K. & T. R. Co. 
V. Hawley (Tex. Civ. App.), 123 
S. W. 728. 



2240 



Master and Sebyant. 



^843 



in the wajE, works, maohinery, etc.,'" must be either 
in the words of the statute or substantially the same.'^^ 

The complaint must state something which is a "de- 
fect" within the statute, and hence it is not sufficient 
to allege a negligent use of the appliance as distinguished 
from a defect therein.'" 

Furthermore, the complaint must allege the particular 
"defect" relied upon*" and describe it with such par- 
ticularity as to inform the defendant of what he is called 
upon to defend.'** 

But where a trestle was alleged to be defective, it was 
held sufficient without stating what part of the trestle 
was defective.'** 

So, alleging the defect as "a defect in the roadbed or 
track of defendant railroad" has been held to be suf- 
ficient,"* and where a stationary engine was alleged to 



316. See supra. 



A serv- 



ant who has a cause of action at 
common law may nevertheless pro- 
ceed under the Employer's Liability 
Act in a proper case, as where the 
injury is caused by a defect in the 
ways, works, or machinery owing 
to the employer's neerligence. Proc- 
tor V. Rockville C. M. & C. Co., 
126 N. Y. Supp. 743. 

317. Mobile & O. R. Co. v. 
George, 94 Ala. 199, 10 So. 145. 
Forms of complaints set out in case 
and held sufficient, see St. Louis & 
S. F. R. R. Co. V. Phillips, 165 Ala. 
504, 506 (action based on 1896 
statute); Southern Cotton Oil Co. 
V. Walker. 164 Ala. 33, 35-38; Tal- 
lassee Falls Mfg. Co. v. Moore, 158 
Ala. 356, 357; West Pratt Coal Co. 
V. Andrews, 150 Ala. 368, 373; Tut- 
wiler Coal, C. & I. Co. v. Farring- 
ton, 144 Ala. 157, 39 So. 898. 

318. Woodward Iron Co. v. 
Johnson, 150 Ala. 365. 



319. Sloss-Sheffield Steel & Iron 
Co. V. Smith, 166 Ala. 437, 52 So. 
39; Whitmore v. Alabama Consol- 
idated C. & I. Co., 164 Ala. 125 
[explaining Jackson Co. v. Cunning- 
ham, 141 Ala. 206, 37 So. 445]; 
Whatley v. Zenida Coal Co., 122. 
Ala. 127. 26 So. 124. See Birming- 
ham Rolling Mill Co. v. Rockhold, 
143 Ala. 115, 42 So. 96, where na- 
ture of defect in bridge held suffi- 
ciently described. But see supra, 
§ 836. 

320. Louisville & N. R. Co. v. 
Jones, 130 Ala. 456, 30 So. 586. 

321. West Pratt Coal Co. v. 
Andrews, 150 Ala. 368. 

322. St. Louis & S. F. R. R. 
Co. V. Phillips, 165 Ala. 504; Ala- 
bama G. S. R. Co. V. Davis, 119 
Ala. 573, 24 So. 862. "Railway" 
held synonymous with "track." 
E. E. Jackson Lumber Co. v. Cun- 
ningham, 141 Ala. 206, 37 So. 445. 



§843 



Pleading. 



2241 



be defective it was held not necessary to specify what 
part of the engine was defective. •*• 

So it has been held that a complaint describing the 
defect as one in the condition of the electric Ughting 
apparatus on a pole mention^, is sufficient.''^ 

It is not sufficient to merely allege the existence of a 
defect where the condition described refutes the con- 
clusion, but the pleader must go further and show the 
surrounding conditions, etc., going to make up the 
defect. »« 

The complaint need not show a defect in the ways,^ 
works, etc., but it is sufficient to show a defect in the 
"condition** of the ways, works, etc.*'* 

In Alabama, where several defects are alleged con- 
junctively, it is necessary to prove, or to introduce evi- 
dence tending to prove, all of the defects.*'^ 

So, in Alabama, under the statute, counts are defective 
which do not show by averment that the defect com- 
plained of "arose from or had not been discovered or 
remedied owing to the negligence of the master, or some 
person in his service, and intrusted by the master with 
the duty of seeing that the wbjs, works, machinery or 
plant were in proper condition";*'® but it is not neces- 
sary to give the name of the servant intrusted with 
such duty."* 

Statutes making master liable for acts of superin- 
tendent. 

The Employer's Liability Act of Alabama, Massachu- 
setts, New Jersey and Vermont, make superintendents 



323. 8lo89-Sheffield Steel & Iron 
Co. V. Hutchison, 144 Ala. 221, 
40 So. 114. 

324. Willey v. Boston Electric 
Light Co., 168 Mass. 40. 

325. Huyck v. MoNemey, 163 
Ala. 244. 

326. Jones v. Tennessee C. I. 
& R. R. Co., 163 Ala. 266. 

327. Tobler y. Pioneer Mining 
& Mfg. Co., 166 Ala. 482. 



328. Sloss-Sheffield Steel & Iron 
Co. V. Bibb, 164 Ala. 62. 70; Mo- 
bile & O. R. Co. v. George, 94 Ala> 
199, 10 So. 145; Central of Ga. R. 
Co. V. Lamb, 124 Ala. 172, 26 So. 
969. 

329. Louisville & N. R. Co. v. 
lile, 154 Ala. 556, 45 So. 699, and 
oases cited. Contra, Louisville & 
N. R. Co. V. Bouldin, 110 Ala. 185, 
20 So. 325 [overruled by Wood- 



2242 



Masteb and Sebyant. 



§843 



vice-principals; and the New York statute is even 
broader than the others in this resi>ect since a recent 
amendment. •** 

A complaint based on this statutory proviaon should 
closely follow the particular statute."^ 

Under the Alabama statute, the complaint must 
allege that the sui>erior servant has ''sui)erintendence 
intrusted to him'' and that injury occurred while in the 
^'exercise of such superintendence","^ and the same is 
true in Massachusetts, New Jersey and Vermont except 
that in the latter states it must be alleged that the sole 
or principal duty of the negligent servant was that of 
superintendence. In pleading under the New York 
statute, the recent amendment of 1910 should be kept 
in mind,'" although undoubtedly a complaint good 
under the old law would be sufficient under the statute 
as amended. 

It would seem unnecessary in any of the states to 
allege what the superintendence was."^ 

The complaint must show that the alleged negligent 
superintendent was in the employ of defendant at the 
time of the accident,"^ and show that he was in fact 
negligent."* 



ward Iron Co. v. Hemdon, 114 
Ala. 191, 21 So. 430.] 

330. See supra, . 

331. Forms of oountsheld suf- 
floient, see Seaboard Mfg. Co. v. 
Woodson, 94 Ala. 143, 10 So. 87; 
Southern Car & Foundry Co. v. 
Bartlett, 137 Ala. 234, 34 So. 20; 
Southern R. Co. v. Shields, 121 
Ala. 460, 25 So. 811, 77 Am. St. 
Rep. 66. 

332. United States C. I. P. & 
F. Co. V. Driver, 162 Ala. 680, 60 
So. 118; Southern Car & Foundry 
Co. V. Bartlett, 137 Ala. 234, 34 
So. 20; Bear Creek Mill Co. v. 
Parker, 134 Ala. 293, 32 So. 700. 
See also Louisville & N. R. Co. v. 
Bouldin, 110 Ala. 186, 20 So. 326. 



Allegations held to sui&oiently show 
that superintendence whioh defend- 
ant's superintendent had was in- 
trusted to him by defendant. Bes- 
semer Land & Improvement Co. v. 
CampbeU, 121 Ala. 60, 26 So. 793, 
77 Am. St. Rep. 17. 

333. See supra, . 

334. Western Steel Car ft F. 
Co. V. Cunningham, 168 Ala. 369, 
48 So. 109; Louisville ft N. R. Co. 
V. Orr, 94 Ala. 602, 10 So. 167. 

336. See Highland Ave. ft Belt 
R. Co. V. Dusenberry, 98 Ala. 239, 
13 So. 308. 

336. Deeatur Car Wheel ft 
Mfg. Co. V. Mehaffey, 128 Ala. 242, 
29 So. 646. Must be some faot 



§843 



Pleading. 



2243 



In Alabama, however, the averment of specific negli- 
gence is not required. ''^ 

It is proper, at least in New York, to allege the negli- 
gence to be that of defendant rather than of the super- 
intendent. ''^ 

In Alabama, a count for personal injury of an em- 
ployee resulting from the negligence of another employee, 
who is intrusted with sui>erintendence, must allege the 
name of such employee, or that it is unknown to plain- 
tiff;*" but the contrary is held in Massachusetts.'*^ 

Alleging that a yard master was intrusted with super- 
intendence ''in the placing and position of cars" neces- 
sarily implies that he was intrusted with superintendence 
over men and not merely over inanimate things.'*^ 

Statutory provision as to injury from conformity to 
orders of superior servant. 

In Indiana, as already stated,**^ the Employer's Ida- 
bility Act contains a provision making the master Uable 
where the injury results from the negligence of any ^per- 
son in the service of the employer, "to whose order or 
direction the injured employee at the time of the injury 
was bound to conform and did conform";*** and in 
Alabama the statute is nearly identical with the addition 
of the clause ''if such injuries resulted from his having 
so conformed."*** 



stated on which charge of negli- 
gence can be predicated. Pagnillo 
V. Mack Paving & C. Co., 142 App. 
Div. 491, 127 N. Y. Supp. 72. 

337. Bessemer Land & Im- 
provement Co. V. Campbell, 121 
Ala. 50, 25 So. 7d3, 77 Am. St. 
Rep. 17. See also St. Louis & S. 
P. R. Co., Ala. , 53 So. 305. 

338. Harris v. Baltimore Ma- 
chine & Elevator Works, 112 App. 
Div. 389, 98 N. Y. Supp. 440 [af- 
firmed in 188 N. Y. 141, 80 N. E. 
1028]. 

339. Woodward Iron Co v. 



Hemdon, 114 Ala. 191, 21 So. 
430; Central Foundry Co. v. 
Bailey, 162 Ala. 623, 50 So. 346, 
holding that if name be averred to 
be unknown it must be proved. 

340. Woodbury v. Post, 158 
Mass. 140. 

341. Kansas City, M. & B. R. 
Co. V. Burton, 97 Ala. 240, 12 So. 
88. 

342. See supra, . 

343. Bums' 1908 Ind. St., § 
8017, subd. 2. 

344. Code Ala. 1907, § 3910, 
subd. 3. 



2244 



Masteb and Sebvant. 



^843 



In setting forth a cause of action under these sub- 
divisions it is advisable to follow the statute as closely 
as possible, and great care should be taken to see that 
all the necessary facts required by the statute are al- 
leged.***^ 

In order to state a cause of action under this subdivision 
it is necessaiy, in addition to the aUegations required 
in all complaints by a servant, that the complaint state 
facts which show the following:'*® (1) that the relation of 
master and servant existed between defendant and 
the negligent employee;'*^ (2) that the neghgent servant 
had authority to give the order;*** (3) that the person 
injured was bound to comply with such order;*** (4) that 
the injury resulted from conforming to such orders;**® 
(5) that the order was a special order, not as broad as the 
general scope of the employment;**^ (6) if the negligence 
consists in the giving of an order, that the order was 



346. Postal Tel. Cable Co. v. 
Hulsey, 115 Ala. 193, 22 So. 854. 
See also Indiana Mfg. Co. v. Bus- 
kirk, 32 Ind. App. 414, 68 N. E. 
925; Thaoker v. Chicago, I. & L. 
R. Co., 159 Ind. 82, 64 N. E. 605, 
59 L. R. A. 792. Must show that 
the injury was caused by the negli- 
gence of the superior servant. Ft. 
Wayne Iron & Steel Co. v. Paraell, 
168 Ind. 223, 79 N. E. 439. Forms 
of complaints held sufiBicient, see 
Louisville & N. R. Co. v. Wynn, 
166 Ala. 413, 414; Alabama Steel 
& Wire Co. v. Tallant, 165 Ala. 521, 
523; Chicago, I. & L. R. Co., 33 
Ind. App. 379, 71 N. E. 524. 

346. Riohey v. Cleveland, C. C, 
A St. L. R. Co.,— Ind. App. — , 93 N. 
E. 1022; Cleveland, C. C. & St. L. 
R. Co. V. Bossert, 44 Ind. App. 
245, 87 N. E. 158. 

347. See supra, { 825. 

348. Ft. Wayne Gas Co. V. Nie- 
man, 33 Ind. App. 178, 71 N. E. 59. 



349. Southern Indiana R. 
Co. V. Martin', 160 Ind. 280, 66 
N. E. 886; Ft. Wayne Gas Co. v. 
Nieman, 33 Ind App. 178, 71 N. E. 
59. 

350. Central of Ga. R. Co. v. 
Lamb, 124 Ala. 172, 26 So. 969; 
Louisville & N. R. Co. v. Barg- 
anier, —Ala. — , 53 So. 138. This 
probably need not be alleged in 
Indiana, since the statute does not 
contain the Alabama provision "if 
such injuries resulted from his 
having so conformed''; but in In- 
diana the servant must have been 
injured while complying with the 
order. 

351. See Southern Ind. R. Co. v. 
HarreU, 161 Ind. 689, 68 N. E. 
262, 63 L. R. A. 460; Indiana Mfg. 
Co. V. Buskirk, 32 Ind. App. 414, 
68 N. E. 925; Pittsburgh, C. C. A 
St. L. R. Co. V. Ross, 169 Ind. 3, 
80 N. E. 845. 



^843 



Pleading. 



2245 



"negligently'* given, '^^ but it is not necessary to aver in 
what particular or respect the orders or directions were 
negligent;'^* (7) if the order was not negligently given, 
that, while plaintiff was performing his duty in carrjdng 
out said order, and while he was in a place where he 
was required to be in the performance of his duty, under 
said order, he was injured through some negUgent act or 
omission of the servant giving the order or direction;*** 
and (8) in Indiana, that plaintiff was employed by one 
engaged in the operation of railroads. 

Under the statute, it is held in Indiana, where assump- 
tion of risk must ordinarily be negatived, that it is not 
necessary so to do tmder this subdivision.*" 

In Alabama, the complaint must also state the name of 
the negligent servant or allege it to be tmknown to 
plaintiff."* 

Provisions more or less like those of Alabama and 
Indiana are found in some of the very recent fellow- 
servant statutes as to which there has been no decisions 
construing their meaning, and also in some of railroad 
fellow-servant statutes. 

Under a constitutional provision in Mississippi pro- 
viding that "any person having the right to control or 
direct the services of the party injured" is not a fellow- 
servant of such person, a declaration charging that 



352. Alabama Steel & Wire Co. 
y. Clements, 146 Ala. 259; Southern 
Car & Foundry Co. v. Bartlett, 
137 Ala. 234, 34 So. 20; Bear Czeek 
Mill Co. y. Parker, 134 Ala. 293, 
32 So. 700. 

353. Mobile & O. R. Co. y. 
Oeorge, 94 Ala. 199, 10 So. 145. 
But see Louisville & N. R. Co. y. 
Bargauier, — Ala. — , 53 So. 138, 
which apparently holds the oon- 
irary. 

354. Richey y. Cleyeland, C. C. 
A St. Lu R. Co., — Ind App.— , 93 N. 



E. 1022. See also Munde Pulp 
Co. y. Davis, 162 Ind. 558, 70 
N. E. 875. It seems, however, that 
in Alabama, the negrligenoe of 
the superior ean consist only in 
giving the order. Louisville & N. 
R. Co. y. Barganier, — Ala. — ^ 
53 So. 138. 

355. Pittsburgh, C. C. & St. L. 
R. Co. y. Ross, 169 Ind. 3, 80 N. 
E. 845. 

356. Alabama Steel & Wire Co. 
y. dements, 146 Ala. 259, 40 So. 
97. 



2246 



Masteb and Sebvant. 



§843 



injuries to a fireman were caused by an engineer and 
adding the very language of the statute, is sufficient. '^^ 

Statutory provisions as to person in charge of engine, 
train, etc. 

The statutory provisions in New York, Massa- 
chusetts, Alabama, Indiana, New Jersey, Vermont, and 
some other states abolishing the fellow-servant rule where 
the negligence is that of a servant ''in charge'' of an 
engine, train, car, etc., "on a railway" have been referred 
to in the chapter on fellow-servants. '** 

Under such statutes, the complaint must closely follow 
the provisions of the particular statute, such statutes 
differing somewhat in the particular states.'^* 

It must be alleged that the negligent servant was an 
employee of defendant;'*® that the person whose negli- 
gence is complained of was "in charge" of the train, en- 



357. Cheaves v. Southern R. Co., 
82 Mi88. 48, 34 So. 385. 

358. See supra — . 

359. See Pittsburgh, C. C. & St. 
L. R. Co. y. Ross, 169 Ind. 3, 80 
N. E. 845. Under the statute, a 
oomplaint is sufficient which alleges 
that an engineer while in the em- 
ploy of the defendantrailroad com- 
pany, in charge of a locomotive, 
negligently injured the plaintiff who 
was a brakeman, both at the time 
acting in the line of duty as em- 
ployees of such company. Pitts- 
burgh, C. C. & St. L. R. Co. V. 
Montgomery, 152 Ind. 1, 49 N. E. 
582, 71 Am. St. Rep. 301, 69 L. 
R. A. 875. Forms of oomplaint set 
out and held sufficient, see Southern 
R. Co. V. Carter, 164 Ala. 103. 
Birmingham, R. L. & P. Co. v. 
Mosely, 164 Ala. Ill, 113; Ala- 
bama Great Southern R. V. Brock, 
161 Ala. 351, 352, 49 So. 453; 
Woodward Iron Co. v. Lewis, — 



Ala. — , 54 So. 566. Louisville & 
N. R. Co. y. Markee, 103 Ala. 160, 
15 So. 511, 49 Am. At. Rep. 21; 
Chicago & E. I. R. Co. v. Rich- 
ards, 28 Ind. App. 46, 61 N. E. 18. 
In Indiana, it is held that it is 
sufficient for plaintiff to allege 
that he was injured while in the 
line of duty in the service of the 
railroad corporation, and in the 
exercise of due care and diligence 
(this clause not necessary now), 
by the negligence of the (conductor) 
in the service of such corporation 
who at the time had charge of one 
of its trains upon a railway, and 
was acting within the scope of 
his employment. Chicago, I. & L. 
R. Co. V. Williams, 168 Ind. 276, 
79 N. E. 442. See also Cleveland, 
C. C. & St. L. R. Co. V. €k>88ett, 
172 Ind. 525, 87 N. E. 723. 

360. Alabama Great S. R. Co. v. 
Williams, 140 Ala. 230, 37 So. 255. 



§843 



Pleading, 



2247 



gine, etc.;'*^ and that the engine, train, etc., was on a 
railway."* 

In Alabama, the name of the negligent servant must 
be alleged or that his name is unknown to plaintiff,'*' 
but the complaint need not specifically allege that the 
negligent servant was at the time in discharge of the 
duties of his employment. '•* 

Failure to confine the negligence alleged to a single 
employee in charge of a locomotive is not an objection. '•* 

In Alabama, very general allegations of negligence on the 
part of the offending servant are held sufficient, '•• and in 



361. Tennessee, C. I. & R. Co. 
y. Bridges, 144 Ala. 229, 39 So. 
902, 113 Am. St. Rep. 35; Central 
of Ga. R. Co. y. Lamb, 124 Ala. 
172, 26 So. 969. See also Southern 
Ind. R. Co. y. Baker, 37 Ind. 
App. 405, 77 N. E. 64. In Southern 
Indiana R. Co. y. Osbom, 39 Ind. 
App. 333, 78 N. E. 248, the ob- 
jeotion that this appeared only 
by recital was held not tenable. 
See Pittsburgh, C. C. & St. L. R. 
Co. y. Rogers, — Ind. App. — , 
87 N. E. 28, where express ayer- 
ment held unnecessary. 

362. Sloss-Sheffidd Steel & Iron 
Co. y. Mobley, 139 Ala. 425, 36 
So. 181; Woodward Iron Co. y. 
Lewis, — Ala. — , 54 So. 566; 
Tennessee Coal, Iron & R. Co. y. 
Bridges, 144 Ala. 229, 39 So. 902, 
113 Am. St. Rep. 35; Alabama, G. 
S. R. Co. y. Dayis, 119 Ala. 572, 
24 So. 862. In Mobley's case, 139 
Ala. 425, 36 South, 181, it was held 
that a complaint that alleged that 
the defendant was operating a lo- 
comotiye and a switch engine in the 
handling of material for its fur- 
nace, and that the negligent serv- 
ant who caused the injury was the 
engineer who had charge or con- 
trol of said switch engine, set up 



no sufficient ayerment that the 
engine was upon a railway. 

363. Central of Ga. R. Co. y. 
Lamb, 124 Ala. 172, 26 So. 969; 
Southern R. Co. y. Cunningham, 
112 Ala. 496, 20 So. 639. Where 
injuries were alleged to haye re- 
sulted "from the negligence of 
Gould," it was not neces- 
sary for plaintiff to ayer that he 
had made diligent effort to ascer- 
tain the employee's full name but 
had failed to ascertain it. Northern 
Ala. R. Co. y. Shea, 142 Ala. 119, 
37 So. 796. 

364. Woodward Iron Co. y. 
Hemdon, 114 Ala. 191, 21 So. 430; 
Alabama Great Southern R. Co. y. 
Brock, 161 Ala. 351, 49 So. 453. 
Compare, { 828, next to last para- 
graph. 

365. Chicago & E. R. Co. y. 
Lain, Ind. App. 72 N. E. 539. 

366. Northern Alabama R. Co. 
y. Shea, 142 Ala. 119, 37 So. 796 
(running engine at dangerous and 
reckless rate of speed); Sloss- 
Sheffield Steel & Iron Co. y. Mob- 
ley, 139 Ala. 425, 36 So. 181 (neg- 
ligence of engineer not specified); 
Alabama Great Southern R. Co. y. 
Brooks, 135 Ala. 401, 33 So. 181 
(negligence of engineer "in operat- 



2248 



Master and Sebvant. 



^844 



Indiana it is held that an all^ation that the engineer 
''negligently ran said engine and train into, and causing 
them to coUide with the rear end of one of defendant's 
freight trains" at a certain place is sufficient. '^^ 

In Indiana, the complaint must show that defendant 
was engaged in the operation of a railroad. '^^ 

If a railroad statute designates certain named servants 
as vice-principals, the complaint based thereon must state 
to which class the negligent servant belonged.'^* 

§ 844. Pleading damages. 

In pleading the damages sustained, the general rules 
relating to pleading damages in actions for personal in- 
juries based on negligence are applicable. The complaint 
should state what the injuries were, and if special as 
distinguished from general damages are claimed they must 
be specifically set forth. Pain and suffering need not be 
specially alleged, however, nor need the loss of time and 
earnings. If the injury is a permanent one, evidence is 
admissible to show it to be so although the permanency 
is not specially pleaded. 

If exemplary damages are sought, the facts warranting 
their recovery must be alleged but such damages need not 
be specifically prayed for. If the fellow-servant or any 
other statute in the state precludes recovery by certain 
persons other than the injured person, unless certain 
facts exist, the complaint should bring the case within 
the statute by appropriate allegations. 

The amount of the damages should be fixed at a sum 
at least equal to any sum the court or jury may award. 



ing the engine'*); Bear Creek Mill 
Co. Y. ParkJer, 134 Ala. 293, 32 
So. 700; Highland Ave. & B. R. 
Co. V. MiUer, 120 Ala. 536, 24 So. 
955; Southern R. Co. v. Arnold, 
114 Ala. 183, 21 So. 954. See also 
supra, i 828. 

367. Pittsburgh, C. C. & St. L. 
R. Co. V. Collins, 163 Ind. 669, 71 
K. E. 661. Nearly identical alle- 



gations held sufficient in Chicago, 
I. & L. R. Co. V. Cobler, 39 Ind. 
App. 606, 80 N. E. 162. 

368. American Car & Foundry 
Co. V. Inzer, 172 Ind. 66, 87 N. B. 
722. 

369. Albrecht v. Milwaukee & 
S. R. Co., 87 Wis. 106, 68 N. W. 
72, 41 Am. St. Rep. 30. 



§ 845 Pleading. 2249 

since the verdict or findings cannot exceed the sum 
claimed. 

§ 845. Joinder of groimds in same count. 

Two causes of action cannot be joined in the same 
count. Where there is such a joinder, the objection may- 
be reached by demurrer in some jurisdictions while in 
others a motion is the proper remedy. 

Under this rule, both under the codes and under the 
common law system of pleading, a complaint cannot set 
up two or more distinct and independent breaches of 
duty in the same count. *^^ Thus, plaintiff cannot join 
in one and the same count a cause of action for negli- 
gence based on the violation of the duty to furnish a 
safe place to work with one based on the failure to furnish 
safe tools or machinery. 

Likewise, a common law cause and a statutory cause 
cannot be joined in one count, esi)ecially where incon- 
sistent,'^^ nor can two or more different statutory causes 
where the ground or which plaintiff relies is thereby made 
uncertain.'^* 

Plaintiff cannot join in the same count a cause of 
action based on one subdivision of an Employers' Lia- 
bility Act with another based on a different subdivison.*^' 

But where the acts of negligence charged are of the 
same character and naturally lead up to and contribute 
to the same accident, any number of distinct acts may be 
alleged in one count. '^* 

Or, as stated in another case, a complaint in a personal 
injury case is not bad for duplicity although it alleges two 
acts of negligence on the part of defendant, where the 

370. La Porte v. Cook, 20 R. I. R. Co. v. Burton, 97 Ala. 240, 12 
261, 38 Ail. 700. So. 88. 

371. Tazoo & M. V. R. Co. y. 373. Richardson v. St. Louis A 
WiOlace, 90 Miss. 609, 43 So. 409. H. R. Co., 223 Mo. 325, 123 S. W. 

372. Louisville & N. R. Co. v. 22. 

Orr, 94 Ala. 602, 10 So. 167. Com- 374. Richardson v. St. Louis A 

pare Birmingham Southern R. H. R. Co., 223 Mo. 325, 123 S. W. 

Co. y. Cuzzart, 133 Ala. 262, 31 22. 
So. 979; Kansas City, M. & B. 



2250 



Masteb and Sebvant. 



^846 



two acts, as charged, contributed or were capable of con- 
tributing to produce the injury, and were cumulative, 
each tending to supi)ort the other. '^* 

So the pleader may, in a single count, ascribe the in- 
jury suffered to concurrent, coalescing breaches of duty 
under two or more subdivisions of the Employers' Lia- 
bility Act; but it must aver that these acts of neg- 
ligence jointly caused the injury suffered."* 

The fact that the complaint, in stating a cause of 
action under one subdivision of the Employers' lia- 
biUty Act, incidentally states facts also constituting a 
cause of action under another subdivision, does not 
render it demurrable. '^^ 

§ 846. Joinder of counts. 

It is common practice, and permissible, to join dif- 
ferent counts based on the violation of different duties, 
and also counts based on the common law and cotmts 
based on a statute. "* 



375. Flynn v. Staples, 34 App. 
D. C. 92, where defeotive ooncti- 
tion of steam supply pipe and the 
absence of a steam gauge were held 
peoperly alleged in the same oount. 
To same effect, see Knickerbocker 
Ice Co. V. Gray, 171 Ind. 395, 84 
N. E. 341. 

376. While two or more separate 
causes of action under the statute 
cannot be joined in the same oount, 
yet the complaint may, in a single 
count, ascribe the injury to con- 
current, coalescing breaches of 
duty imder two or more subdivi- 
sions of the Employer's Liability 
Act, thereby constituting a single 
cause of action, but in such case he 
must prove not only the several 
negligences averred but also that 
they each concurred to produce 
the injury complained of. Louisville 



& N. R. Co. V. Fitzgerald, 161 
Ala. 397, 49 So. 860. 

377. Chicago & E. R. Co. v. 
Lain — Ind. App. — , 72 N. E. 
539. 

378. Richardson v. St. Louis & 
H. R. Co., 223 Mo. 325, 123 S. W. 
22. Common laws counts. Crane v. 
T. J. Congleton ft Bros. (Ky.), 
116 S. W. 341. It is a common and 
commendable practice to state the 
case in different counts with such 
variation of statement as necessary 
to meet every possible phase of the 
testimony, so that if plaintiff fails 
in the proof of one count he may 
succeed on another and thus pre- 
vent a fatal variance; and re- 
pugnancy between the counts is 
not a ground of demurrer. Seal v. 
Virginia Portland Cement Co., 108 
Va. 806. 



§ 847 PLBADiNa 2251 

And not only may the complaint join counts for a 
common law cause of action with counts based on a 
statute, but also counts based on different subdivisions of 
the statute. 

However, where the injured servant has died, an ad- 
ministrator cannot join statutory and common law 
cotmts where the claims do not accrue to him in the 
same capacity.'^ 

Election between counts. 

Except where otherwise provided by statute, defendant 
may generally compel plaintiff to elect as between in- 
consistent counts in the complaint.''^ 

But where a cause of action exists both at common law 
and under the statute, plaintiff cannot be compelled to 
elect between the two before trial ;*®^ 

But in Massachusetts where a declaration contains 
counts at common law and under the Employers' lia- 
bih'ty Act, presenting different issues and involving 
different liabilities in damages, it is within the discretion 
of the presiding judge to require the plaintiff to elect 
whether he will go to the jury on the counts at common 
law or those framed upon the statute.'^' 

§ 847. Bill of particulars. 

In some states where bills of particulars are ordered in 
proper cases, such a bill may be required to specitj in what 
respect the appliance or place of work is imsafe,'^' or 
the like. 

379. Brennan v. Standard Oil 381. Kleps y. Bristol Mfg. Co., 
Co., 187 Mass. 376, which, however, 107 App. Div. 488, 95 N. Y. Supp. 
was not a master and servant ease. 337. 

380. Counts for failure to fur- 382. Brady v. Ludlow Mfg. Co., 
nish safe place to work and for 154 Mass. 468, 28 N. E. 901. 
negligence of fellow-servant are 383. O'Leary v. Candee, 60 N. 
not inconsistent. Vindicator Con- T.*Supp. 1103. 

sol. Gold Min. Co. v. Pirstbrook, 
36 Colo. 498, 86 Pao. 313. 



2252 Masteb and Sebvant. §§ 848, 84^ 



§ 848. Sufficiency of complaint as dependent on when 
attacked. 

A complaint, although very general in its terms so as to 
be demurrable, may be sufficient when first attacked after 
verdict.*** 

§ 849. Amendments. 

If the time to amend as of course has elapsed, and the 
application is not made before trial, the general rule is 
that a new or different cause of action cannot be set up or 
added by way of amendment during or after the trial. 
The rule is well settled in most jurisdictions but the diffi- 
culty comes in determining whether a new cause of 
action is stated or whether the added matter is merely 
an amplification of the cause of action originally stated. 

Under this rule that an amendment on or after the 
trial cannot set up a new or different cause of action, it 
has been held that where failure to warn was relied on, 
an amendment setting up that the machinery used was 
defective cannot be allowed.*** 

So where negligence in using different systems of bum- 
pers was alleged, an amendment charging negligence in 
having bumpers loose and out of repair was improper.*** 

So where the amendment sets up a statutory cause of 
action, and the original complaint relies on a right of 
action created at common law, a new cause of action 
is set up. **• 

On the other hand it has been stated in a recent case 
in Rhode Island,**^ that "the great weight of authority is 
to the effect that the allowance of an amendment to a de- 

384. See Broderiok v. Detroit 385. Box v. Chioago, R. I. & 
Union R. R. S. & D. Co., 56 Mich. P. R. Co., 107 la. 660, 78 N. W. 
261, 22 N. W. 802, 56 Am. Rep. 694. 

382. 386. MoCray v. Moweaqua Coal 

385. Mayer v. Ramsay-Brisvane Min. Co., 149 111. App. 565. 
Stone Co., 119 Ga. 734, 46 S. E. 387. Chobonian v. Washburn 
844. Wire Co., — R. I. — , 80 Atl. 394. 



§849 



Pleadinq. 



2253 



ola«ration, setting forth an additional ground of negligence 
as the cause of the same injury, does not amount to the 
statement of a new cause of action."'*' 



388. Smith v. Missouri Pao. Ry. 
Co., 56 Fed. 468, 6 C. C. A. 567; 
Cross y. Evans, 86 Fed. 1, 29 C. C. 
A. 623; Columb v. Webster Mfg. 
Co., 84 Fed. 592, 28 C. C. A. 226, 
43 L. R. A. 196; Berube v. Horton, 
199 Mass. 421, 85 N. E. 474; Daley 
V. Gates, 66 Vt. 691, 27 Atl. 193; 
Molntire v. Eastern Railroad, 58 
N. H. 137; Babb v. Paper Co., 99 
Me. 298, 59 Atl. 290; Kuhns v. 
Railway Co., 76 Iowa, 67, 40 N. W. 
92; Sheffield v. Harris, 112 Ala. 
614, 20 South. 956; Greer v. Rail- 
road Co., 94 Ky. 169, 21 S. W. 649, 
42 Am. St. Rep. 346; Piokett v. 
Railway, 74 S. C. 236, 54 S. E. 376; 
Lee v. Republic Steel Co., 241 ni. 
372, 89 N. E. 666; Tanner v. Harp- 
er, 32 Colo. 166, 75 Pao. 404. 

In Chobonian v. Washburn Wire 
Co., — R. I. — , 80 Atl. 394, by 
amendment, it was held proper to 
set forth the following additional 
specifications of negligence, viz., 
that improper hooks were used in 
connection with the trunnions 
and specifying in what particulars 
the hooks were improper, the em- 
ployment of incompetent fellow- 
servants, and the defendant's fail- 
ure to properly inspect. 

The rule is stated in 1 Ency. PI. 
& Pr. 564, as follows: '*As long as 
the plaintiff adheres to the contract 
or the injury originally declared 
ui)on, an alteration of the modes in 
which the defendant has broken 
the contract or caused the injury 
is not an introduction of a new cause 
of action. The test is whether the 
proposed amendment is a different 



matter, another subject of con- 
troversy, or the same matter more 
fully or differently laid to meet the 
possible scope and varying phases 
of the testimony." In Colmnbus v. 
Anglin, 120 Ga. 786, 48 S. E. 318, 
the question was whether an amend- 
ment to the declaration was prop- 
erly allowed under a statute pro- 
viding that, **no amendment add- 
ing a new and distinct cause of 
action, or new and distinct parties, 
shall be allowed, unless expressly 
provided for by law." The plain- 
tiff sued for damages for personal 
injuries resulting from the fall of 
a shed built over a sidewalk. The 
negligence alleged in the original 
declaration was that the municipal 
authorities had changed the grade 
of a certain street and put insuffi- 
cient drains therein, so that the 
surface water was allowed to i)ond 
near and upon the sidewalk and 
cause a washout, which the munici- 
pal authorities negligently filled 
with unsuitable material, thereby 
causing the support of the shed to 
settle, and as a result the wooden 
shed fell upon the plaintiff. The 
trial court allowed an amendment 
setting forth a further ground of 
negligence, in this, that the defend- 
ant had failed in its duty to inspect 
said shed, and permitted said 
street to be dangerous by allowing 
said shed to stand, and that from 
said neglect of duty said shed fell 
and injured the plaintiff. The court 
held that the amendment was 
properly allowed, and that no new 
and distinct cause of action is 



2254 



Masteb and Sebyant. 



§850 



III. Answer. 

§ 850. General considerations. 

The general rules as to the necessity of si)ecially pleading 
afSrmative defenses apply to the class of actions now 
under consideration, **• as do the other rules governing the 
form and contents of an answer or plea. 



added by an amendment con- 
taining additional matter deeorip- 
tive of the same wrong originally 
pleaded. The rule is laid down 
that, when in an action ex delicto 
the declaration sets out certain 
acts of negligence, to show a viola- 
tion by defendant of the plaintiff's 
right, such petition may be amend- 
ed by setting out additional acts of 
negligence to show substantially 
the same violation of the same 
right. The reasoning of the court is 
shown in the following excerpts 
from the opinion: "So long as a 
plaintiff pleads but one wrong, he 
does not set up more than one 
cause of action. Courts will look to 
the allegations, both as to the 
primary right of the plaintiff and 
the corresponding primary duty 
of the defendant, and as to the 
violation or breach thereof, in order 
to determine whether it is the in- 
tention to plead but a single cause 
of action. In Allen v. Tuscarora 
Valley R. Co.. 229 Pa. St. 97, 78 
Atl. 34. 30 L. R. A. (N. S.) 1096, 
the declaration was at common 
law for injury resulting from the 
negligence of defendant in using a 
coupler more dangerous than the 
usual coupler employed on rail- 
roads. The amendment alleged 
that the railroad was engaged in 
interstate commerce, and its cars 



were equipped with couplers in vio- 
lation of the act of Congress of 
March 2, 1893. Such a cluuige was 
held to be a departure in law. 

In Pratt v. Cir. Judge, 105 Mich. 
499, 63 N. W. 506, the amendments 
offered stated that the plaintiff was 
in the exercise of due care, and did 
not in any way contribute to the 
injury. The court say: "The declar- 
ation, as amended, relates to pre- 
cisely the same state of facts, and 
no new theory is evolved by the 
proposed amendments, which sim- 
ply amplify the averments con- 
tained in the original declaration 
by statements in no way incon- 
sistent with those originally set out. 
It is a question of acknowledged 
difficulty to ascertain in just what 
cases an amendment may be said 
to set out a new cause of action. 
• . • And, when the amendment 
does not introduce a new cause of 
action, the running of the statute 
of limitations is arrested at the date 
of the institution of the suit." 

389. Under the plea of the 
general issue, defendant may deny 
plaintiff's duty to obey the order 
in the execution of which he was 
injured, the negligence relied on 
being that of a superior in giving 
an order, under the statute. Louis- 
ville &, N. R. Co. V. Wynn. 166 Ala. 
413. 



§851 



Pleading. 



2255 



In Massachusetts, where the time limit to sue under 
the Employers' Liability Act is fixed at one year, the 
defense of lapse of time may be urged tmder a general 
denial in the answer, the statute being held not a mere 
statute of limitations but one stating a condition prece- 
dent to the right to sue. ^ 

§ 851. Alleging assumption of risk. 

In considering the necessity and sufficiency of pleas of 
assimied risk, it is necessary to keep in mind the differ- 
ence between the assumption of the ''ordinary*' risks 
of the employment, such risks being independent of any 
negligence of the employer, and the assumption of ''ex- 
traordinary" risks arising from the negligence of the em- 
ployer. If the risk is of the former kind it need not be 
pleaded by defendant, since proof to show such fact 
merely goes to disprove the allegations of the complaint 
that defendant was negUgent. ^^ 

On the other hand, it is held in nearly all of the states 
that where the risk assumed is an "extraordinary" one 
it can not be urged unless specially pleaded as a defense, ^' 



390. Where the limitation of 
time to sue is in the nature of a 
condition to plaintiff's cause of 
action, lapse of time may be proved 
under a general denial. McRae y. 
New York, N. H. & H. R. Co., 199 
Mass. 418, 86 N. E. 425. 

391. A plea of assumption of 
risk "incident to such employ- 
ment," which is in effect merely a 
plea of the assumption of an "ordi- 
nary" risk and can be relied on 
under a general denial, is to be dis- 
tinguished from a plea of assump- 
tion of risk from perils created or 
enhanced by the master's lack of 
reasonable care, i. e., assumption of 
an "extraordinary" risk. The first 
plea does not raise the latter de- 
fense which must be specially 

pleaded to be available. Vohs y. 
8 M. ft 8.— 18 



ShorthiU ft Co., 130 la. 638, 107 
N. W. 417; Obenchain y. Harris ft 
Cole Bros., — la. — , 126 N. W. 
960; Duffey y. Consolidated Block 
Coal Co., 147 Iowa, 226, 124 N. 
W. 609. Contra, see Boin y. 
Spreckels Sugar Co., 166 Cal. 612, 
102 Pac. 937, holding defense of 
assumption of ordinary risks must 
be pleaded. The same rule laid 
down in Iowa has been enunciated 
in Nebraska. Evans Laundry Co., 
V. Crawford, 67 Neb. 163, 93 N. W. 
177. And in Oregon, Tucker v. 
Northern Pac. B. Co., 41 Or. 82, 
68 Pac. 426. And, it seems, in Colo- 
rado, City of Gredoy v. Foster, 
32 Colo. 292, 306. 

392. In most of the states the 
defense of assumption of risk is an 
affirmative one and must be 



2256 



Masteb and Sebvant. 



§851 



although in some states it is still necessary to negative 
assumption of risk in the complaint,^' and in such juris- 
dictions it would seem to follow as a matter of course 
that a general denial will suffice to put such allega- 
tions in issue and that therefore the defense may be 
proved although not specially pleaded. ••* 

Assumption of risk need not be pleaded in Missouri, 
it is held,''^ but inasmuch as in that state the rule as to 
assumption of '"extraordinary" risks is practically abol- 
ished, the holding in effect coincides with those in most 
of the other states that assumption of ' 'ordinary" risks 
need not be pleaded. 

Assumption of risk may be taken advantage of, however, 
in any jurisdiction, although not pleaded, where it is 
shown by plaintiff's own evidence, ••• or by his pleadings. 

As distinguished from plea of contributory negli- 
gence. 

In another connection, the difference between the de- 
fenses of assumed risk and contributory negligence has 
been considered at some length. ''^ 

It follows that a plea attempting to set up assumption 
of risk but alleging facts showing contributory negli- 
gence is insufficient, and vice versa. ^* 



pleaded. This has been expressly 
held in Alabama, Arkansas, Califor- 
nia, Florida, Indian Territory, Iowa, 
Montana, Nebraska, North Caro- 
lina, South Carolina, Texas, Utah 
and Washington. The rule is to the 
oontrary in Indiana. See supra, 
§S 768, 832. 

393. See supra, { 768. 

394. Baker v. Barker Asphalt 
Paving Co., 92 Fed. 117; Amerioan 
Car & Foundry Co. v. Clark, 32 
Ind. App. 644, 70 N. E. 828. 
Contra, Louisville & N. R. Co. v. 
Orr, 84 Ind. 50. 



395. George v. St. Louis A S. 
F. R. Co., 226 Mo. 364, 125 S. W. 
196; Dakan v. G. W. Chase & Son 
MeroantUe Co., 197 Mo. 238, 94 
S. W. 944; Curtis v. McNair, 173 
Mo. 270, 73 S. W. 167. 

396. Tazoo & M. V. R. Co. v. 
Woodruff, — Miss. — , 53 So. 687. 

397. See supra — . Plea con- 
strued as one setting up contri- 
butory negligence rather than as- 
sumption of risk, see Ogilvie v. 
Conway Lumber Co., 80 S. C. 7» 
61 S. E. 200. 

398. New Connellsville C. & C. 
Co. Y. Eilgore, 162 Ala. 642. 



§851 



Pleading. 



2257 



Sufficiency of plea. 

The plea of assumption of '^extraordinary" risks need 
not be in any particular form of words. '•• 

The plea must allege or show either that the defect 
was obvious or was known to plaintiff,*** and also either 
expressly allege, or show by necessary inference, that 
plaintiff knew or should have known tiie risk or danger 
as well as the defect. ^^ 

Where the facts alleged show that the danger was 
obvious, the plea need not expressly aver that it was 
obvious.^* 

Where knowledge of the alleged incompetency of the 
negligent servant is relied on as an assumption of the 
risk, it is necessary to expressly aver knowledge of such 
incompetency. ^ ' 

A plea of assumption of "ordinary" risks, even if con- 
ceded to be necessary in any case, may be very general in 
its terms. ^* 

If a particular risk or risks assumed are specified in the 
plea, the defendant is restricted to those alleged and 
cannot prove other risks assumed. ^^ 



399. See €k>iiig v. Alabama 
Steel A Wiie Ck>., 141 Ala. 537, 37 
So. 784. Forms of pleas of as- 
somption of risk, set out in full and 
held sufficient, see Merriweather 
Y. Sayre Mining & Mfg. Co., 161 
Ala. 441, 446; Bryant v. Alabama, 
Qzeat So. R. Co., 155 Ala. 368, 
371; Price v. St. Louis, S. R. Co., 
38 Tex. Civ. App. 309, 85 S. W. 
858 (plea of assumption of ."ordi- 
nary" risk). 

400. Pierson Lumber Co. v. 
Hart, 144 Ala. 239, 39 So. 566; 
Western R. of Ala. v. Russell, 144 
AU. 142, 39 So. 311, 113 Am. St. 
Rep. 24. But in Alabama a plea 
alleging knowledge "or notice" of 
the danger has been held insuffi- 
cient. Merriweather y. Sayre 



Mining & Mfg. Co., 161 Ala. 441; 
Osborne v. Alabama Steel & Wire 
Co., 135 Ala. 571. 33 So. 687. 

401. West Pratt Coal Co. v. 
Andrews, 150 Ala. 368, 43 So. 348; 
Southern R. Co. v. McGk>wan, 149 
Ala. 440, 43 So. 378. 

402. Alabama, Great So. R. 
Co. y. Brooks, 135 Ala. 401, 33 So. 
181. 

403. First Nat. Bank of Mont- 
gomery V. Chandler, 144 Ala. 286, 
39 So. 822, 113 Am. St. Rep. 39. 

404. See Charping y. Toxaway 
Mills, 70 S. C. 470, 50 S. E. 186; 
Bryan y. International & G. N. R. 
Co. (Tex. Ciy. App.), 90 8. W. 
693; Adams y. San Antonia & A. 
P. R. Co., 34 Tex. Qv. App. 413, 
79 S. W. 79. 



2258 



Masteb akd Sbbyant. 



§^ 852, 853 



§ 852. Alleging failure of servant to report defects. 

Under the statutory provisions existing in some states 
precluding a recovery by an injured servant where he 
knew of the defect before the injury but failed to notify 
the master thereof, this is a defense which must be spe- 
cially pleaded by defendant.^* 

But a plea that plaintiff knew of the defect but did 
not inform the master is sufficient where in the language 
of the statute. «^ 

A plea that the servant knew of the defect or danger and 
did not report it to the master is not insufficient, under the 
statute, because it does not allege that the master did 
not know of the defect, but that is ground for replication. ^* 

§ 853. Alleging contributory negligence. 

In most jurisdictions, contributory negligence is an 
affirmative defense and must be si)ecially pleaded.^ 

In some states, however, the defense must be negatived 
in the complaint, ^^^ although in the latter class of states 
the rule has been changed in several, including New York 
and Indiana, by a more or less recent statute, ^^^ and in 
such states the defense may be shown under a general 
denial or the general issue. '^^^ 



405. International & O. N. R. 
Co. V. Garcia (Tex. Civ. App.), 117 
S. W. 206. 

406. See supra, . Form of 

plea of knowledge of defeot by em- 
ploye and failure to inform master, 
held sui&oient, see Merriweather v. 
Sayre Mining & Mfg. Co., 161 
Ala. 441, 446. 

407. Merriweather v. Sayre 
Milling & Mfg. Co., 161 Ala. 441. 
Need not allege knowledge of the 
''danger'* as distinguished from the 
"defeot." Louisville & N. R. Co. 
V. Wilson, 162 Ala. 588, 50 So. 188. 



408. Louisville&N. R. R. Co. v. 
Wilson, 162 Ala. 588, 50 So. 188. 

409. Kansas City, M. A^ B. R. 
Co. V. Crocker, 95 Ala. 412, 11 So. 
262. See also supra, {{ 769, 833. 

410. See supra, {§ 769, 833. 

411. By a recent statute, in In- 
diana, contributory negligence need 
not be negatived in the complaint 
but may be proved under a general 
deniaL Bum's Ind. St. 1908, § 
362. 

412. Wiggins Ferry Co. v. 
Blakeman, 54 HI. 201; Dover v. 
Lockhart Mills, 86 S. C. 229, 68 
S. E. 525. 



^853 



Pleading. 



2259 



If the complaint alleges that the plaintiff was without 
fault, a denial of this allegation raises the issue of contribu- 
tory negligence. *^' 

No plea of contributory negligence is necessary where 
plaintiff's own case necessarily puts in issue all the facts 
relied on by defendant to show contributory negligence/^ ^ 
nor where plaintiff's own testimony shows that he is 
guilty of contributory negligence.*" 

Sufficiency of plea. 

In some jurisdictions it is held that contributory 
negligence must be pleaded with the same degree of par- 
ticularity as is required of the plaintiff in pleading negli- 
gence on the part of the defendant. *" 

In Alabama, greater particularity is required in allega- 
tions of contributory negligence by the defendant than 
is required of the plaintiff in alleging negligence. ^" 

Generally it is held that a plea of contributory negli- 
gence must set out the facts constituting the negligence,*" 



413. Hutohings v. Mills Mfg. 
Co., 68 S. C. 612, 47 S. E. 710. 

414. Murray v. Gulf, C. & S. F. 
R. Co.. 73 Tex. 2, 11 S. W. 125. 

415. Kile ▼. Union Eleo. L. & 
P. Co., 149 Mo. App. 354, 130 S. 
W. 89. 

416. Gleason v. Missouri River 
Power Co., 42 Mont. 238, 112 Pao. 
394. 

417. Alabama Great Southern 
R. ▼. Brook, 161 Ala. 351. Pleas 
of contributory negligence held in- 
sufficient, see United States C. I. 
P. & F. Co. V. Driver, 162 Ala. 580; 
Tallassee Falls Mfg. Co. v. Moore, 
158 Ala. 356; Masoott Coal Co. v. 
Gazrett, 156 Ala. 290; West Pratt 
Coal Co. V. Andrews, 150 Ala. 368; 
Foley V. Pioneer Min. & Mfg. Co., 
1441 Ala. 178. Pleas of contribu- 
tory negligence held sufficient, see 
Turner v. Louisville & N. R. Co., 
162 Ala. 586; Merriweather v. 



Sayre Mining A Mfg. Co., 161 Ala. 
441; Bear Creek Mill Co. v. Par- 
ker, 134 Ala. 293, 32 So. 700; Os- 
borne V. Alabama Steel & Wire 
Co., 135 Ala. 571, 33 So. 687. 
Forms of pleas of contributory neg- 
ligence, set out in full, and held suf- 
ficient, see Meiriweather v. Sayre 
Mining & Mfg. Co., 161 Ala. 441, 
445-447; Woodward Iron Co. v. 

Lewis, Ala. . 54 So. 566 

(violation of rules by servant). 

418. Southern Cotton Oil Co. v. 
Walker. 164 Ala. 33; Western R. 
of Ala. V. Russell, 144 Ala. 142, 39 
So. 311, 113 Am. St. Rep. 24; 
Briggs V. Tennessee, C. I. & R. R. 
Co., 163 Ala. 237; Huggins v. 
Southern R. Co., 159 Ala. 189; 
Alabama Chemical Co. v. Niles, 
156 Ala. 298, 47 So. 239; LouisviUe 
& N. R. Co. V. Markee, 103 Ala. 
160, 15 So. 511, 49 Am. St. Rep. 
21. Plea held not to state conolu- 



2260 



Masteb and Servant. 



^853 



but a plea stating mere conclusions cannot be first attacked 
on appeal. *^* 

A plea of contributory negligence must allege, it has 
been held, that there was a safer way in which the plain- 
tiff could have discharged his duty and also that he was 
aware of the danger of the position occupied by him.^^ 

A plea that the servant knew, or by the exercise of 
reasonable care should have known, of the danger, is in- 
sufficient, where knowledge must be shown. ^'^ 

A plea that plaintiff was guilty of negligence in failing 
to discover the alleged defect in an appliance though he 
would have done so if he had exercised reasonable care is 
held defective in Alabama, because not alleging facts 
showing a duty on the part of the servant to inspect or 
showing that the defect was obvious.^'' 

A plea that plaintiff, after discovering the defective 
condition of a part of a machine, "negligentiy failed to 
shut off the steam pressure and failed to use the auxilaries 
which would have prevented the injury*' was held not open 



dons, see New Connellsville C. A 
C. Co. ▼. Eilgore, 162 Ala. 642. 
Must state facts and not oonolu- 
sions. Tallassee Falls Mfg. Co. v. 
Moore, 158 Ala. 356, 48 So. 593; 
Southern R. Co. v. Jaokson, 133 
Ala. 384, 31 So. 988. Compare 
Raunn v. Galveston, H. & S. A. R. 
Co. (Tex. Civ. App.), 92 S. W. 426, 
where plea of assumed risk is called 
plea of contributory negligence. 
In Nebraska a general allegation 
of contributory negligence is suffi- 
cient unless assailed by a motion to 
make more definite and certain. 
Chicago, B. & Q. R. Co. v. Oyster, 
58 Neb. 1, 98 N. W. 358. Plea of 
negligence in getting on locomotive 
wldle in motion is demurrable for 
failure to more explicitly state the 
facts. Creola Lumber Co. v. Mills, 
149 Ala. 474, 42 So. 1019. Disob^ 
dience of rules or orders by the in- 



jured servant cannot be shown 
under a general allegation of con- 
tributory negligence. Texas & P. 
R. Co. V. Magiill, 15 Tex. Civ. App. 
353, 40 S. W. 188. 

419. Kirkpatrick v. St. Louis 
& S. F. R. Co., 159 Fed. 855. 

420. United States Cast Lron 
P. A F. Co. V. Granger, 162 Ala. 
637, and cases dted. If failure of 
injured servant to choose a safe 
place in which to work is relied on, 
as contributory negligence, the plea 
must allege that a safe place was 
apparent or known to him. South- 
em R. Co. V. McGk>wan, 149 Ala. 
440, 43 So. 378. 

421. Jones v. Pioneer Min. A 
Mfg. Co., 149 Ala. 402 [foUowed in 
Lockhart v. Sloss-Sheffield Steel A 
Lron Co., 165 Ala. 516]. 

422. Grasselli Chemical Co. v. 
Davis, 166 Ala. 471. 



^853 



Pleading. 



2261 



to the objection that it was not alleged that a reasonable 
time within which to turn off steam intervened after the 
discovery by plaintiff of the defect, since that was neces- 
sarily embraced in the averment that after discovery he 
"negUgently'' faUed, etc.*" 

Causal connection. 

The plea must show the causal connection between the 
contributory negligence alleged and the injury.*^* 

But a plea that ''plaintiff did not examine his working 
place under the rock or place that fell on him before 
commencing work thereimder, and as a proximate result 
thereof was thereby hurt. It was the duty of plaintiff 
before commencing work to examine his working place, 
and his injury was the proximate result of his failure 
to perform this duty;" is not subject to the objection that 
it is a conclusion as to proximate cause. *^^ 

Violation of rules. 

Where violation of a rule by the injured servant is set 
up as a defense, the plea must aver knowledge of such 
rule on the part of defendant/ ^^ but need not set out the 
rule violated.**^ 

The plea need not negative the habitual violation of the 
rule, since that is a proper matter for the replication.*'^ 

Alternative allegations. 

A plea of contributory negligence in going "under or 
near'' the defective roof has been held insufficient because 
of the alternative allegation. *^ 



423. Paoe v. Louisville & N. R. 
Co., 166 Ala. 519. 

424. St. Louis & S. F. R. Co. v. 
Phillips, 165 Ala. 504, 51 So. 638; 
Bear Creek Mill Co. ▼. Parker, 
134 Ala. 293, 32 So. 700. 

425. Lookfaart v. Sloss-Shef- 
field Steel & Iron Co., 165 Ala. 516, 
51 So. 627. 



426. Louisville & N. R. Co. v. 
Hawkins, 92 Ala. 141, 9 So. 271. 

427. Aloom v. Chicago & A. R. 
Co., 108 Mo. 81, 18 S. W. 188. 

428. Woodward Iron Co. v. 
Lewis, Ala. , 54 So. 566. 

429. Simmerman v. Hills Creek 
Coal Co., Ala. , 54 So. 426. 



2262 



Masteb AiH) Sebvakt. 



$854 



In connection with general deniaL 

The defense of contributory negligence may be pleaded 
in an answer which also sets up a general denial of all 
negligence on the part of the defendant,^^ and hence a 
plea of contributory negligence need not expressly admit 
or aver that defendant was also negligent. ^'^ 

§ 854. Pleading defense of fellow-servants. 

In some jurisdictions, the defense that the injured serv- 
ant and the negligent servant were fellow-servants can- 
not be relied on unless specially pleaded.^'' 

In other states the defense that the injury was caused 
by fellow-servants need not be specially pleaded.^'' 

However, if the complaint itself shows that plaintiff was 
injured by the negUgence of a fellow-servant, it need not 
be set up in the answer. ^'^ 

And, of course, if the complaint alleges that the negli- 
gent servant held a position ma»lring him a vice-principal. 



430. Millan v. Southern Ry. 
Co., 54 8. G. 485, 32 S. £. 539. 

431. Charping v. Toxaway 
Millfl. 70 S. C. 470, 50 S. E. 188 
[ezplaining Soott ▼. Seaboard Air- 
Line Ry., 67 S. C. 136, 45 S. E. 
129]. In an action for damages 
upon the ground of defendant's 
negligenoe, such negligenoe is not 
admitted where the answer denies 
generally and then pleads oontribu- 
tory negligence on the part of the 
plaintifiF. The plaintiff must, not- 
withstanding, prove negligence on 
the part of the master. GFeorge 
Fowler Sons & Go. v. Brooks, 65 
Ean. 861, 70 Pac. 601. Contribu- 
tory negligence, when pleaded by 
itself, is an admission of negligence 
on the part of the defendant, but 
not when interposed with the plea 
of not guilty. Louisville & N. R. 
Co. V. Hall, 87 Ala. 708. 

432. Layng ▼. Mt. Shasta Min- 



eral Spring Co., 135 Cal. 141, 67 
Pac. 48; Reeve v. Colusa Gas & 
Electric Co., 152 Cal. 99, 92 Pac. 
89; O'Brien v. Coira-Rock Island 
Mining Co., 40 Mont. 212, 105 Pac 
724; Duff v. Willamette Iron ft 
Steel Works, 45 Or. 479, 78 Pac 
363; Millen v. Pacific Bridge Co., 
51 Or. 538, 95 Pac. 196; Johnson v. 
Heath, 5 Neb. (Unof.) 369, 98 N. 
W. 832. See also supra, § 834. 

433. Vinson v. Morning News, 
118 Ga. 655, 45 S. E. 481; Eamin- 
ski V. Tudor Iron Works, 167 Mo. 
462, 67 S. W. 221; Sheehan v. 
Prosser, 55 Mo. App. 569; Roberts 
V. Virginia Carolina Chemical Co., 
84 S. C. 283, 66 S. E. 298; Wilson v. 
Charleston & S. R. Co., 51 S. C. 
79, 28 S. E. 91; LouisviUe & N. R. 
Co. V. Chamblee, — Ala. — , 54 
So. 681. See also supra, J 84. 

434. Mann v. O'Sullivan, 135 
Cal. 141, 67 Pac 48. 



^855 



Pleading. 



2263 



defendant may show under a general denial that he was in 
fact a fellow-servant.*" 

It has been held that it is sufficient to merely allege that 
the injury was caused by the acts of fellow-servants with- 
out going into any details. *•• 

But aUeging that the injury was caused by plaintiff's 
own negligence is insufficient as an averment that the 
injmy was caused by the negligence of fellow-servants. *'^ 

IV. Reply and sxtbseqtjent pleadings. 

§ 855. Replication or reply. 

The necessity for a replication or reply is governed by 
the general rules of pleading prevailing in the particular 
jurisdiction. The replication or reply may consist of a 
general denial or new matter. 

It is often interposed, where contributory negligence is 
pleaded, to show that defendant was negligent after dis- 
covery of plaintiff's peril ;*•* or that the rule alleged to 
have been violated was habitually violated; or that 
plaintiff was acting pursuant to express orders or imder 
an assurance of safety. So where assumption of risk is re- 
lied on as a defense, it is often proper or necessary to set 
up by reply that there was a promise to repair and that 



436. Pennsylvania Co. v. Pia- 
haok, 123 Fed. 465, 472, 59 G. C. A. 
269; Johnson v. Heath, 5 Neb. 
(Unof.) 369. 98 N. W. 832. 

436. Cinoinnatd, N. O. & I. P. 
Ry. Co. ▼. Lewallen, 17 Ky. L. Rep. 
863, 32 S. W. 958. A plea that the 
injuries "were the proximate result 
of the negligence of his fellow- 
servant, in that said timber was 
insecurely and negligently loaded on 
said bucket, in that it was not tied 
or fastened, and by reason thereof 
said timber became loose, causing 
the injury as aforesaid by falling 
against or upon plaintiff, as a prox- 



imate result of the said negligence 
of plaintiff's fellow-servant, viz., 
Coe, in loading said timber," was 
held not demurrable as failing to 
allege how the timber proximately 
caused the injury, or as stating con- 
clusions, or because not giving the 
name of the fellow-servant. New 
Connellsville, C. & C. Co. v. Kil- 
gore, 162 Ala. 642. 

437. Conlin v. San Francisco & 
S. J. R. Co., 36 Cal. 404. 

438. Sufficiency of allegations, 
see Ford v. Chicago, R. I. & P. 
R. Co., 106 la. 85, 76 N. W. 650. 



2264 



Masteb akd Sebvant. 



^856 



a reasonable time had not elapsed after the promise and 
before the injury.*** 

But a replication alleging a promise to remedy the de- 
fect is inappropriate as a reply to a plea of contributory 
negligence as distinguished from a plea of assumed risk.*^ 

So a replication is proper to set up an exception in 
a statute pleaded by defendant as a defense, as for in- 
stance, that defendant already had knowledge of the 
defect which he claims plaintiff should have informed 
him of.*" 

In the federal courts it is held that a general denial 
in a replication is sufficient as against pleas of contrib- 
utory negUgence and assumed risk.**' 

The replication should state facts, **• avoid dupKcity, 
and not be a departure from the complaint. Thus, 
where the complaint states a cause of action at conmion 
law, plaintiff cannot in his reply set up a statutory cause 
of action.*** 

§ 856. Rejoinders. 

Rejoinders are not imcommon in some states, such 
as Alabama,**^ but in the code states the reply is the 
last pleading in point of time. 



439. Southern Cotton Oil Co. 
v. Walker, 164 Ala. 33, holding 
replication insufficient because not 
averring that a reasonable time for 
making the repairs had not elapsed. 

440. Menriweather ▼. Sayre 
Mining & Mfg. Co., 161 Ala. 441. 

441. Alabama Steel & Wire Co. 
V. Thompson, 166 Ala. 460. 



442. American Smelting & Re- 
fining Co. ▼. Earapa, 173 Fed. 607. 

443. Alabama, G. S. R. Co. v. 
Richie, 111 Ala. 297, 20 So. 49. 

444. Ham ▼. St. Louis & S. F. 
R. Co., 149 Mo. App. 200, 130 S. 
W. 407. 

445. See Southern Cotton Oil 
Co. V. Walker, 164 Ala. 33, 52. 



BOOK VI. 

WORKMEN'S COMPENSATION ACTS. 

§ 857. Introductory. 

It is not the intention of the author to consider at any 
length the compensation statutes enacted in some eleven 
states, most of them within the last year, since there are ap- 
parently only four decisions in the United States in relation 
to any such statutes at the time this is written, and all of 
those relate to the constitutionality of the particular stat- 
ute. To review at length the cases decided in England 
under statutes more or less similar and to point out in de- 
tail the differences between the statutes of the various 
states would require another volume to be added to this 
work and perhaps would be of little or no value accord- 
ing to whether such statutes are declared to be consti- 
tutional or unconstitutional. 

§ 858. Nature of statutes. 

These statutes are based on the theory that an employee 
who is injured whUe engaged in his work is entitled to 
compensation from his employer without regard to 
whether the latter has been guilty of negligence, pro- 
vided the employee has not been guilty of wilful mis- 
conduct. Before the enactment of these statutes, an 
employer could not be held liable unless guilty of negli- 
gence. Under these statutes the question of his negli- 
gence is immaterial, except that under some of the stat- 
utes the wilful misconduct of the employer gives the 
injured employee certain additional rights. 

§ 859. Historical : English statutes. 

In 1897, a statute was enacted in England, called the 
Workman's Compensation Act. It enabled an em- 
ployee, under certain circumstances, to obtain compen- 
sation from his employer for personal injuries notwith- 

(2265) 



2266 Masteb akd Servant. ^^860, 861 

standing the employer was not guilty of any negligence, 
provided the injury was not due to the employee's 
"serious and wilful misconduct." This statute provided 
in detail the employments to which it was appUcable, 
the amount of compensation recoverable, and the pro- 
cedure to enforce the Uability. 

The statute, however, was poorly drawn, resulting in 
a multitude of decisions construing the various provi- 
sions thereof . In 1900, the statute was extended so as 
to cover employers and employees engaged in agricul- 
ture. A new statute was passed in 1906 which has 
since been modified by the Workmen's Compensation 
Rules enacted in 1907, 1909 and 1910. 

These statutes form the basis of those enacted in the 
United States in the past few years. 

§ 860. States which have enacted statutes. 

Statutes of this nature have been enacted in Califor- 
nia, Illinois, Kansas, Massachusetts, Nevada, New 
Hampshire, New Jersey, New York, Ohio, Washington 
and Wisconsin. 

§ 86L General considerations as to these statutes. 

The first statute of this class enacted in this coimtry 
appears to have been the New York act which became 
a law Jime 25th, 1910.^ This statute was entitled "An 
Act to Amend the Labor Law, in Relation to Workmen's 
Compensation in Certain Dangerous Employments," 
and it was made applicable only to certain hazardous 
employments. It fixed the amoimt of compensation, 
provided for the mode of settlement of disputes,, etc. 
However, this statute was held unconstitutional by the 
Court of Appeals of the state of New York in the case 
of Ives V. South Buffalo Railway Company already re- 
ferred to at some length in the chapter on Fellow-Serv- 
ants in volxmie two of this work.^ This decision was 
based on the ground that it is not competent to impose 
upon an employer, who has omitted no legal duty and 

1. Laws N. Y. 1910, o. 674. 2. See § , vol. 2. 



^861 Wobkmbn's Compensation Acts. 2267 



has conunitted no wrong, a liability based solely upon 
a legislative determination that his business is inher- 
ently dangerous. The decision rendered by Justice 
Werner considers the question at length with great 
abiUty and clearness of thought. Chief Justice Cullen 
added a concurring opinion in which he fully agreed with 
the opinion of Justice Werner, but states that as to cor- 
porations thereafter formed the rule might be different. 
All the justices concurred in the one opinion or the other.' 

The statutes of the other states may be classified as 
(1) those which are mandatory and make the employer 
liable without regard to his negUgence, whether or not 
he elects to bring himself within their provisions, like 
the New York statute, and (2) those which are elective 
and are applicable only to employers and employees 
filing their assent thereto or otherwise consenting to be 
boimd thereby. 

Of the former class may be mentioned the statutes of 
Nevada and Washington. The Nevada statute,^ is com- 
pulsory so far as the employer is concerned, but it is 
expressly provided that it is optional with the employee 
whether to proceed thereunder or to pursue any other 
remedy. If the New York decision is followed, it seems 
that this statute will be declared imconstitutional. 

In the latter class are included, among others, the 
statutes in California, Illinois, Kansas, Massachusetts, 
New Hampshire, New Jersey, Ohio and Wisconsin. Thus, 
the E^ansas statute^ applies only to employers 'Vho 
have elected or shall elect before the accident to come 
within the provision thereof." The California statute 
has already been referred to and set forth at length in 
volume two of this work.'' It comes within the class of 
statutes making it optional with the employer to bring 
himself within its provisions and hence it may well be 
held to be constitutional notwithstanding the courts of 

3. Ives ▼. South Buffalo R. Co., 6. Laws 1911, o. 218, set out in 
201 N. Y. 271. 94 N. E. 431, revg. full at p. 2279. 

140 App. Div. 921. 7. § , vol. 2. 

4. Laws 1911, c. 183, set out in 
full at p. 2397. 



2268 Master aih) Servant. §862 



California deem the holding in the New York ease to be 
sound. In New Hampshire,' the statute is optional so 
far as the employer is concerned and the employee has 
his choice between avaiUng himself of this new statute, 
or proceeding by action in the same manner as before 
the enactment of the statute. Contributory negligence, 
however, is retained as a defense. What has been said 
about the California statute applies equally well to this 
statute, so far as its constitutionahty is concerned. 

§ 862. Massachusetts statute. 

The Massachusetts statute,' set forth in full in the 
appendix herein, at the outset, in part one, aboUshes the 
defenses of contributory negUgence, fellow-servants and 
assumption of risk, except in so far as such defenses may 
be interposed in actions to recover damages for personal 
injuries sustained by ''domestic servants and farm la- 
borers," and except when an action is brought against 
an employer who has agreed to the compensation with- 
out negligence plan. It also provides in part one that 
an employee cannot sue at conmion law imless he gives 
notice at the time of his contract of hire that he claims 
such right, with certain modifications. 

In part two of this statute, the question of payments 
to employees by the association incorporated as a part 
of such statute, under the name of the Massachusetts 
Employees' Insurance Association, is legislated upon. 
Any employer in the conmionwealth "may'' become a 
subscriber thereto, and subscribers are distributed into 
groups in accordance with the nature of the business 
and the degree of the risk of injury, and the subscribers 
within each group must annually pay such premiums as 
may be required to pay the compensation therein pro- 
vided for the injuries which may occur in that year. It 
will be noticed that the statute is something on the 
Washington plan except that the latter appUes to em- 
ployers whether they consent thereto or not while the 
Massachusetts statute is elective both as to employee and 

8. Laws 1911, 0. 163. 9. Acts 1911, o. 751, p. 998, 

set out in full at p. 2299. 



§862 Massachusetts 1911 Statutes. 2269 

employer. The part of the statute dealing with the 
insurance association takes effect January 1, 1912, while 
the balance of the statute does not take effect until 
July 1, 1912. 

The statute also provides, inter alia, that notice of 
the injury must be given within six months, with certain 
exceptions; that the decision of the industrial accident 
board shall be enforceable "as if it were a decree of the 
Superior Court," but ''there shall be a right of appeal 
to the Supreme Judicial Court on questions of law;'' 
that fees of attorneys and physicians under the act shall 
be subject to the approval of the industrial accident 
board; that every subscriber, as soon as he secures a 
policy, shall at once give notice thereof to all his em- 
ployees; and that an employer may, at his option, pro- 
cure insurance from a liability insurance company and 
not join the association. 

This Massachusetts statute was submitted by the 
state senate, before its passage, to the Supreme Judicial 
Court of that state, for an opinion on the questions 
whether the bill violated the Fourteenth Amendment of 
the Federal Constitution and whether it violated the due 
process of law provision in the state constitution. The 
court, confining itself to the questions submitted, held 
that the statute was not unconstitutional. In referring 
to the New York decision in the Ives case the court 
say: ''There is nothing in the act which compels an 
employer to become a subscriber to the association, or 
which compels an employee to waive his right of action 
at common law and accept the compensation provided 
for in the act. In this respect the act differs wholly, so 
far as the employer is concerned, from the New York 
statute above referred to. By subscribing to the asso- 
ciation an employer voluntarily agrees to be bound by 
the provisions of the act. The same is true of an em- 
ployee who does not choose to stand upon his common 
law rights. An employer who does not subscribe to the 
association will no longer have the right in an action by 
his employee against him at common law to set up the 
defense of contributory negligence or assumption of the 



2270 Mastbb and Sbbvant. §863 



risk, or to show that the injury was caused by the n^li- 
gence of a fellow-servant. In the case of an employee 
who does not accept the comi>ensation provided for by 
the act and whose employer had become a subscriber 
to the association, an action no longer can be maintained 
for death imder the employer's liabiUty act. But these 
considerations do not constitute legol compulsion or a 
deprivation of fundamental rights. . . . Taking into 
account the noncompulsory character of the proposed 
act, we see nothing in any of these provisions which is 
not 'in conformity with' the Fourteenth Amendment to 
the Federal Constitution, or which infringes ui)on any 
provision of our own constitution in regard to the taking 
of property 'without due process of law.' It is within 
the power of the legislature to provide that no agree- 
ment by an employee to waive his rights to compensi^ 
tion under the act shall be valid."*® 

§ 863. New Jersey statute. 

The New Jersey statute,** is also an elective statute. 
It is divided into two sections, the first relating to "Com- 
pensation by Action at Law" and the second to "Elect- 
ive Compensation." The former, in actions based on 
the negligence of the employer, abolishes the defenses of 
fellow-servants and assumption of risk, and changes the 
defense of contributory negUgence so as to make it bar 
a recovery only where the employee is "wilfully n^li- 
gent," and places the burden of proving wilful negli- 
gence on the defendant. The latter section includes 
some fifteen subdivisions and provides for compensation 
to employees irrespective of the negligence of the em- 
ployer, according to a fixed schedule, except when the 
injury is intentionally self-inflicted or caused by the 
intoxication of the injured servant, provided the em- 
ployer and employee accept the provisions of the act 
by agreement, either express or implied. This statute 
provides, however, as to subsequent contracts of hiring, 

10. Re Opinion of Justdoes, 11. Laws 1911, o. 95, set oat 
(Mass. July 24, 1911) 96 N. E. 308. in faU at p. 2323. 



^§ 863, 864 New Jbbsby and Ohio 1911 Statutes. 2271 

that they "shall be presumed to have been made with 
reference to the provisions of section 2 of this act, and 
unless there be as a part of such contract an express 
statement in writing, prior to any accident, either in the 
contract itself, or by written notice from either party 
to the other, that the provisions of section 2 of this act 
are not intended to apply, then it shall be presumed 
that the parties have accepted the provisions of section 
2 of this act and have agreed to be bound thereby." 
Apparently this clause, in so far as it relates to an im- 
pUed agreement, will be an object of attack on its con- 
stitutionality. 

§ 864. Ohio statute. 

In Ohio, a statute was passed in May, 1910," greatly 
limiting the fellow-servant rule and the defense of as- 
sumption of risk, adopting the rule of comparative neg- 
ligence, limiting the rule as to contributory negUgence 
in case of minors, and fixing the ma.xiniuTn amoimt of 
damages recoverable in case of death. This statute is 
superseded by the Workmen's Compensation Act en- 
acted the following year. 

The Ohio statute," enacted in 1911, is also an elective 
statute, and special attention is called thereto because 
it is one of the clearest and most easily understood of 
all this class of statutes so far enacted. like Washing- 
ton and Massachusetts, a state insurance fund is cre- 
ated but payments thereto are not compulsory, the 
statute in that respect being like the Massachusetts 
statute and different from the Washington statute. The 
rates of premium are fixed by the state liabiUty board 
of award; the statute applies to those employing ''five 
or more" workmen; the payment of the premium and 
giving notice thereof to his employees absolves the em- 
ployer from common law liability; ninety per cent of 
the premium is paid by the employer and ten per cent 
by the employees; if the employer does not pay pre- 
miums he is liable at common law except that the defenses 

12. Laws 1910» pp. 195-199. 13. Laws 1911, o. 127, set out 

in full at p. 2336. 
3 M. & S.— 19 



2272 Mastbb and Sebvant. §865 



of contributory n^ligence, assumption of risk and fel- 
low«servants are abolished; the common law action in 
favor of the employee is preserved in certain cases where 
the employer is guilty of wilful negligence and the like; 
the amount recoverable is fixed; the right to api)eal to 
the courts is determined; the procedure of the board in 
determining the damages is set forth; etc. 

§ 865. Washington statute — ^It is held to be constitutional. 

The Washington statute abolishes the doctrine of neg- 
ligence as a ground for recovery and is compulsory.^* 
In its preamble, it sets forth a declaration of the police 
power and states that "The welfare of the state depends 
upon its industries, and even more upon the welfare 
of its wage-worker. The State of Washington, there- 
fore, exercising herein its police and sovereign power, 
declares that all phases of the premises are withdrawn 
from private controversy; and sure and certain relief 
for workmen, injured in extra hazardous work, and their 
famihes and dependents is hereby provided regardless 
of questions of fault and to the exclusion of every other 
remedy, proceeding or compensation, except as other- 
wise provided in this act.'' This statute is the most 
radical of any yet adopted and is the only one of its kind 
which has been held to be constitutional. 

This statute provides that, inasmuch as industry 
should bear the greater proportion of the burden of the 
costs of its accidents, each employer engaged in the 
hazardous employments coming within the act shall, 
prior to January 15 th of each year, pay into the state 
treasury, in accordance with a schedule provided, a sum 
equal to a percentage of his total pay roll of that year, 
pursuant to a classification of the different industries 
fixing the rate per centum each several class is required 
to pay. The fund created is termed the "accident" 
fimd and a scheme is provided for replenishing the fund, 
in case the amoimt collected shall be insufficient to meet 
the demands upon it. It is also provided that no em- 

14. Laws 1911» 0. 74, set out 
in full at p. 2348. 



§865 Washington 1911 Statute Constitutional. 2273 

ployer shall exempt himself from the burdens or waive 
the benefits of the act by contract. Under this statute 
employers contribute to an accident fund and the com- 
pensation for injuries is paid from such fund, the result 
being that a careful employer contributes to the pay- 
ment for injuries sustained by one not his employee but 
the employee of one who perhaps is a careless employer 
in the same class of business. 

This statute goes further than the New York statute 
which was declared unconstitutional, and if the Ives 
case in New York had been followed it would have nec- 
essarily been held imconstitutional. But the rule in 
that case was expressly rejected, and the constitution- 
ality of this Washington statute was decided September 
27th, 1911, in favor of the statute by the Supreme Court 
of that state." The opinion was written by Justice 
Fullerton, and concurred in by all the justices, there 
being a separate concurring opinion by Justice Chad- 
wick. 

The opinion rendered by Justice Fullerton, after set- 
ting forth at length the substance of the statute, takes 
up the four distinct grounds upon which the constitu- 
tionality of the act was challenged, as follows: (1) vio- 
lation of federal and state constitutional provisions that 
no i)erson shall be deprived of life, Uberty or property 
without due process of law; (2) violation of federal and 
state constitutional provisions for equal protection of 
the laws; (3) violation of provision of state constitution 
that property shall be taxed according to its value in 
money and that all taxation shall be equal and uniform; 
and (4) violation of the constitutional right to trial by 
jury. 

In regard to the first point, it was argued in favor of 
the imconstitutionality of the act (1) that it created a 
liability without fault and (2) that it took the property 
of one employer to pay the obligations of another. It 

15. State ex reL Davis-Smith 
Co. V. Clausen (Wash.), 117 Pao. 
1101. 



2274 MAfiXEB AND Servant. §865 

was held, however, that the fact that the statute creates 
a liability without a fault does ''not furnish an absolute 
test of the validity of the act," and as illustrating statutes 
held constitutional although creating liability without 
fault the court refers to statutes making railroad com- 
panies liable, without regard to negligence, for injuries 
to property caused by fire escaping from their locomo- 
tive engines; statutes imposing a Uability upon fire in- 
surance agents, based upon the amount of insurance 
effected by them, for the benefit of a fund to care for 
and cure sick and injured firemen; statutes making a rail- 
road company liable in damages for injuries sustained 
by a passenger, regardless of the question of negligence 
on the part of the company; and the Oklahoma Depos- 
itors' Guaranty Law authorizing the assessment and col- 
lection of a certain per cent on the daily average deposit 
of each and every bank organized under the laws of the 
state as a fimd to pay the losses caused depositors by 
failing and insolvent banks, and which was held to be 
constitutional by the state court and the Supreme Court 
of the United States." 

The court then discusses the police power and holds 
that although the employments referred to in the stat- 
ute are lawful callings, and private in their nature, they 
are subject to the police power and that the statute was 
a valid regulation to promote the general welfare. It 
is then held that the act does not imlawfully interfere 
with the right to contract. Reverting to the police 
power, it is held that if the statute ''has a reasonable 
relation to the protection of the public health, morals, 
safety, or welfare, it is not to be set aside because it may 
incidentally deprive some person of his property without 
fault or take the property of one person to pay the obli- 
gations of another. To be fatally defective in these 
respects, the regulation must be utterly unreasonable 
and so extravagant in nature and purpose as to capri- 

16. Noble State Bank v. Has- in 219 U. S. 104, 31 Sup. Ct. 186, 
kell, 22 Okla. 48, 94 Pae. 590, aff'd 55 L. Ed. — , 32 L. R. A. (-n. s.) 

1062. 



§ 866 1911 Compensation Acts. 2775 



ciously interfere with and destroy private rights. That 
the statute here in question has the attribute of reasonable- 
ness, rather than that of capriciousness, seems incontro- 
vertible. The evil it seeks to remedy is one that calls 
loudly for action. . . . That the principle thus^ 
sought to be put into effect is economically, sociologic- 
ally, and morally sound, we think must be conceded. 
. . . The principle has been enacted into law by 
nearly all the civilized coimtries of Europe, by Australia, 
by New Zealand, by the Transvaal, by the principal pro- 
vinces of the Dominion of Canada, and in a partial form 
at least by one or more South American republics. 
. . . The act, therefore, having in its support these 
economic and moral considerations, is not imconstitu- 
tional for the reasons suggested on this branch of the 
argument." 

The decision further held that the statute was not 
invalid as class legislation on the groimd the fund was to 
be applied to a certain class of injured employees; that 
it was in the nature of a license tax and justifiable on 
the theory of license taxes in general, rather than a gen- 
eral tax within the constitutional provision for equal 
and uniform taxation; and that it did not unlawfully 
interfere with the right to trial by jury.^^ 

§ 866. Wisconsin statute. 

The Wisconsin statute is in its material features large- 
ly the same as the California statute set forth at length 
in volume two of this work, and applies only to those 
employers who file a written acceptance of the provis- 
ions of the statute with the industrial accident board. ^^ 
This statute, in addition to this compensation plan, 
cuts off the defenses of assumed risk, and fellow-serv- 
ants where four or more employees are engaged in the 
conmion employment, in ordinary actions not governed 

17. On this last point, Justice ture can take away from the work- 

Chadwiok, in his concurring opin- ingman his right to trial by jury, 

ion, states that the case is a moot 18. Laws 1911, c. 50, set out 

one and therefore he reserves his in full at p. 2379. 
opinion as to whether the legisla- 



2276 Mastbb and Sbbvaistt. ^§ 867, 868 



by the new compensation plan, except as regards cer- 
tain employees of a railroad company, the law as to 
them being unchanged. It will be noticed that this 
statute (1) regulates and cuts off defenses in ordinary 
actions against an employer for personal injuries, and 
(2) as a separate matter, provides for compensation 
irrespective of negligence on an elective basis. 

This Wisconsin statute has been held constitutional 
in a decision rendered by the supreme court of Wiscon- 
sin in the case of Borgnis against Falk Co. of Milwaukee, 
in November, 1911 (Wis.), 133 N. W. 209. Among other 
things decided therein is that the act is not unconsti- 
tutional as vesting judicial powers in the industrial com- 
mission, that a constitutional statute cannot be contrary 
to public policy; that depriving employers of the defenses 
of assumed risk and fellow-servants is within the legisla- 
tive power; that the act does not make an imjust discrim- 
ination, nor is it invalid on the ground of coercion; that 
the act is not invalid as a deprivation of property without 
due process of law nor on the ground of raising money by 
taxation for a purpose not public nor as impairing vested 
or contract rights of employees then in the service. 

§ 867. Indiana statute. 

Indiana has no statute creating liability irresi>ective 
of negligence, but since the chapter on Fellow-Servants 
was written and printed attention has been called to the 
1911 statute in that state, ^' which seems to abolish the 
rule of fellow-servants where the master employs five 
or more servants in his business and which limits the 
defenses of assumption of risk and of contributory 
negligence. 

§ 868. The present outlook for new legislation and the 
effect thereof. 

There is undoubtedly a strong sentiment in favor of 
legislation that will work a change in the present method 
of adjusting the liability of employers to employees for 

19. Laws 1911, c. 88. 



^ 868 Liability Ibebspectivb of Nbguqence. 2277 



I>6r8onal injuries sustained in the employment. The 
Commissioners on Uniform State Laws, made up of 
lawyers appointed by the governors of the various states, 
have framed a tentative act upon what is called an elect- 
ive basis, requiring the assent of both employer and 
employee before it shall take effect as to either of them. 
The Congress of the United States is also at the pres- 
ent time discussing a bill to modify the Interstate Com- 
merce Act as applied to employees engaged in inter- 
state commerce, so as to make the employers liable 
irrespective of negligence, in line with these statutes 
already referred to. 

Undoubtedly the year 1912 will add several other 
states to the list of those which have already enacted 
such statutes. It is the opinion of the author that the 
decision in New York in regard to the constitutionality 
of the statute in that state is fimdamentally correct and 
that statutes which leave the employer no choice but 
makes him liable even although there has been no negli- 
gence on his part cannot be sustained under our form of 
government. At the same time, it would seem that a 
statute making it optional with the employer to come 
within its provisions by filing a written assent thereto 
revocable at any time, is constitutional at least in so far 
as the employer is concerned. If such a class of stat- 
utes are enacted in the next few years, in addition to 
those now in force, and they are held to be constitu- 
tional, it will mean that there will be two modes of pro- 
cedure in each state; the one as it exists today independ- 
ent of such statutes where the employer or employee 
does not elect to come within the terms of such stat- 
utes, and the other according to the new system under 
which negligence of the employer is not an element. It 
has been suggested that employers will be loath to 
assent to the provisions of the new statutes but un- 
doubtedly many benefits will accrue to them by accept- 
ing such provisions, as for instance the limitation on 



2278 Masteb and Sebyant. ^869 



§ 869. Appendix. 

the amount recoverable, the provisions for payment in 
instaUments, etc. And furthermore under the old sys- 
tem the defenses which may be interposed by an em- 
ployer are constantly being curtailed and under most 
of these new statutes the defenses of assumption of risk 
and fellow-servants are absolutely abolished and the 
defense of contributory negligence abolished or greatly 
limited. 

Attention is called to the appendix immediately fol- 
lowing, which contains the full text of all the Worlanen's 
Comi>ensation Acts enacted at this time, except the 
California statute which was set forth at length in vol- 
ume two, and the New York statute which was declared 
unconstitutional. 

Some of the more important matters in such statutes 
have been emphasized by the use of italics. 



APPENDIX. 



THE TEXT OF ALL THE WORKMEN'S COMPEN- 
SATION ACTS ENACTED UP TO AND 
INCLUDING THE LEGISLATIVE 
SESSION OF 1910-1911. 

§ 870. California statute. 

The CaJifomia statute has been set forth at great 
length in volume two of this work.^ 

§ 871. Kansas statute (Laws 1911, c. 218, p. 382). 

An Act to provide compensation for workmen injured 
in certain hazardous industries. 

Section 1. The obligation. If in any employment 
to which this act appUes, i)er8onal injury by accident 
arising out of and in the course of employment is caused 
to a workman, his employer shall, subject as hereinafter 
mentioned, be liable to pay comi)ensation to the work- 
man in accordance with this act. Save as herein pro- 
vided, no such employer shall be liable for any injury 
for which compensation is recoverable under this act; 
provided, that (a) the employer shall not be liable imder 
this act in resi>ect of any injury which does not disable 
the workman for a period of at least two weeks from 
earning full wages at the work at which he is employed; 
(b) if it is proved that the injury to the workman results 
from his deliberate intention to cause injury ^ or from his 
wilful failure to u^e a guard or protection against accident 
required pursuant to any statute and provided for him^ or 
a reasonable and proper guard and protection voluntarily 
furnished him by said employer, or solely from his delib^ 
erate breach of statutory regulations affecting safety of life 
or limb, or from his intoxication, any compensation in 
respect to that injury shall be disallowed. 

1. Vol. 2, pp. . 

(2279) 



2280 Master and Sbbvant. ^871 



Section 2. Resebvation of liability fob wbono 
OB NEGLIGENCE IN CEBTAiN CASES. Where the injury 
was approximately caused by the individual negligence, 
either of commission or omission, of the employer, in- 
cluding such negUgence of the directors or of any man- 
aging officer or managing agent of such employer if a 
corporation, or of any of the partners if such employer 
is a partnership, or of any member if such employer is 
an association, but excluding the negUgence of compe- 
tent employees in the i)erfonnance of their duties or of 
the employer's duty delegated to them, the existing 
liahility of the employer shall not he affected by this act^ 
but in such case the injured workman, or if death results 
from such injury, his dependents as herein defined, if 
they unanimously agree, otherwise his legal representa- 
tive, may elect between any right of action against the emr 
player upon siu^h liability and the right to compensation 
under this act. 

Section 3. Resebvation 'OF penalties. Nothing in 
this act shall affect the liability of the employer or em- 
ployee to a fine or penalty under any other statute. 

Section 4. Subcontbacting. (a) Where any i>er8on 
(in this section referred to as principal) imdertakes to 
execute any work which is a part of his trade or business 
or which he has contracted to i>erform and contracts 
with any other i>erson (in this section referred to as the con- 
tractor) for the execution by or imder the contractor 
of the whole or any part of the work undertaken by the 
principal, the princii>al shall be liable to pay to any work- 
man Employed in the execution of the work any compen- 
sation imder this act which he would have been liable to 
pay if that workman had been immediately employed 
by him; and where compensation is claimed from or 
proceedings are taken against the principal, then, in the 
appUcation of this act, references to the principal shall 
be substituted for references to the employer, except 
that the amoimt of compensation shall be calculated 
with reference to the earnings of the workman under 
the employer by whom he is immediately employed. 



§ 871 Kansas 1911 Statute. 2281 

(b) Where the principal is liable to pay coiiii)ensation 
under this section, he shall be entitled to indemnity 
from any i)erson who would have been liable to pay com- 
I)ensation to the workman independently of this section, 
and shall have a cause of action therefor. 

(c) Nothing in this section shall be construed as pre- 
venting a workman from recovering compensation under 
this act from the contractor instead of the principal. 

(d) This section shall not apply to any case where the 
accident occurred elsewhere than on, or in, or about the 
premises on which the principal has undertaken to exe- 
cute work or which are otherwise under his control or 
management, or on, in, or about the execution of such 
work under his control or management. 

(e) A principal contractor, when sued by a workman of 
a subcontractor, shall have the right to implead the 
subcontractor. 

(f) The principal contractor who pays comi)ensation 
voluntarily to a workman of a subcontractor shall have 
the right to recover over against the subcontractor. 

Section 5. Remedies both against employer and 
STRANGER. Where the injury for which comi>ensation 
is payable imder this act was caused under circumstances 
creating a legal liabiUty against some person other than 
the employer to pay damages in respect thereof, (a) 
The workman may take proceedings against that per- 
son to recover damages and against any person Uable 
to pay compensation imder this act for such compen- 
sation, but shall not be entitled to recover both damages 
and compensation; and (b) if the workman has recov- 
ered compensation imder this act, the i)erson by whom 
the compensation was paid, or any person who has been 
called on to indemnify him under this section of this 
act relating to subcontracting, shall be entitled to in- 
demnity from the i>erson so hable to pay damages as 
aforesaid, and shall be subrogated to the rights of the 
workman to recover damages therefor. 

Section 6. Application of the act. This act shaU 
apply ofily to employment in the course of the employer's 



2282 Masteb and Sebvant. §871 



trade or business on, in, or about a railway ^ fadory^ mine 
or quarry^ electric^ building or engineering work, laundry, 
natural gas plant and aU employment wherein a process 
requiring the v^e of dangerous explosive or inflammable 
materials is carried on, which is conducted for the purpose 
of business, trade or gain; each of which employments 
is hereby determined to be especially dangerous, in 
which from the nature, conditions or means of prosecu- 
tion of the work therein, extraordinary risk to the life 
and limb of the workmen engaged therein are inherent, 
necessary, or substantially unavoidable, and as to each 
of which employments it is deemed necessary to estab- 
lish a new system of compensation for injuries to work- 
men. This act shall not apply in any case where the 
accident occmred before this act takes effect, and all 
rights which have accrued, by reason of any such acci- 
dent, at the time of the publication of this act, shall be 
saved the remedies now existing therefor, and the court 
shall have same power as to them as if this act had not 
been enacted. 

Section 7. This act shall not be construed to apply 
to business or employment which, according to law, are 
so engaged in interstate commerce as not to be subject to 
the legislative power of the state, nor to persons injured 
while they are so engaged. 

Section 8. It is hereby determined that the necessity 
for this law and the reason for its enactment, exist only 
with regard to employers who employ a considerable 
number of persons. This act, therefore, shall only apply 
to employers by whom fifteen or more workmen have been 
(employed) continuously for more than one month at the 
time of the accident and who have elected or shall elect be- 
fore the accident to come within the provisions hereof; pro- 
vided, however, that employers having less than fifteen worh- 
men may elect to come within the provisions of this act in 
which case his employees shall be included herein, as here- 
inafter provided. 

Section 9. Definitions. In this act, unless the con- 
text otherwise requires: (a) ^'Railway'* includes street 



§ 871 Kansas 1911 Statute. 2283 



railways and interurbans; and '^employment on railways*' 
includes work in depots, power houses, round-houses, 
machine shops, yards, and upon the right of way, and in 
the operation of its engines, cars, and trains, and to em- 
ployees of express companies while running on railroad 
trains, (b) ^^Fdctory^* means any premises wherein 
power is used in manufacturing, making, altering, adapt- 
ing, ornamenting, finishing, repairing, or renovating any 
article or articles for the purpose of trade or gain or of the 
business carried therein, including expressly any brick- 
yard, meat-packing house, foundry, smelter, oil refinery, 
lime burning plant, steam heating plant, electric lighting 
plant, electric power plant and water power plant, powder 
plant, blast furnace, paper mill, printing plant, flour 
mill, glass factory, cement plant, artificial gas plant, 
machine or repair shop, salt plant, and chemical manu- 
facturing plant, (c) ''Mine'' means any opening in the 
earth for the purpose of extracting any minerals, and 
all underground workings, slopes, shafts, galleries and 
tunnels, and other ways, cuts and openings connected 
therewith, including those in the course of being opened, 
sunk or driven; and includes all the appurtenant struc- 
tures at or about the opening of the mine, and any ad- 
joined adjacent work place where the material from a 
mine is prepared for use or shipment, (d) ''Quarry'' 
means any place, not a mine, where stone, slate, clay, 
sand, gravel, or other soUd material is dug or otherwise 
extracted from the earth for the purpose of trade or 
bargain or of the employer's trade or business, (e) 
^'Electrical work" means any kind of work in or directly 
connected with the construction, installation, operation, 
alteration, removal or repair of wires, cables, switch- 
boards or apparatus, used for the transmission of elec- 
trical current, (f) "Building work" means any work in 
the erection, construction, extension, decoration, altera- 
tion, repair or demolition of any building or structural 
appurtenance, (g) "Engineering work" means any work 
in the construction, alteration, extension, repair or dem- 
oUtion of a raUway (as hereinbefore defined) bridge. 



2284 Master and Sbbvant. ^871 



jetties, dike, dam, reservoir, underground conduit, sewer, 
oil or gas well, oil tank, gas tank, water tower, or water 
works (including standpipes or mains), any caisson work 
or work in artificially compressed air, any work in dredg- 
ing, pile driving, moving buildings, moving safes, or in 
laying, repairing or removing underground pipes and 
connections, the erection, installing, repairing, or remov- 
ing of boilers, furnaces, engines and power machinery 
(including belting and other connections), and any work 
in grading or excavating where shoring is necessary or 
power machinery or blasting powder, dynamite or other 
high explosives is in use (excluding mining and quar- 
rying), (h) ''Employer*^ includes any person or body of 
persons corporate or imincorporate, and the legal repre- 
sentatives of a deceased employer or the receiver or trus- 
tee of a person, corporation, association, or partnership, 
(i) ^'Workman'' means any i)erson who has entered into 
the employment of or works under contract of service 
or apprenticeship with an employer, but does not include 
a person who is employed otherwise than for the piui)ose 
of the employer's trade or business. Any reference to 
a workman who has been injured, shall, where the work- 
man is dead, include a reference to his dependents, as 
hereinafter defined, or to his legal representatives, or 
where he is a minor or incompetent, to his guardian, 
(j) '* Dependents'' means such members of the workman's 
family as are wholly or in part dependent upon the work- 
man at the time of the accident. And ''memhera of 
family'' for the purpose of this act means only widow or 
husband, as the case may be, and children; or if no 
widow, husband or children, then parents and grand- 
parents, or if no parents or grandparents, then grand- 
children; or if no grandchildren, then brothers and sis- 
ters. In the meaning of this section parents include 
step-parents, children include step-children, and grand- 
children include step-grandchildren, and brothers and 
sisters include step-brothers and step-sisters, and chil- 
dren and parents include that relation by legal adoi)- 
tion. 



§ 871 Kansas 1911 Statute. 2285 

Section 10. Incompetency op workman. In case 
an injured workman is mentally incompetent or a minor, 
or where death results from the injmy, in case any of 
his dependents as herein defined is mentally incom- 
petent or a minor, at the time when any right, privilege 
or election accrues to him under this act, his guardian 
may, in his behalf, claim and exercise such right, priv- 
ilege, or election, and no limitation of time, in this act 
provided for, shall run so long as such incompetent or 
minor has no guardian. 

Section 11. Amount of compensation. The amount 
of compensation under this act shall be, (a) Where death 
results from injury: (1) If the workman leaves any de- 
pendents wholly dependent upon his earnings, an amoimt 
equal to three times his earnings for the preceding year 
but not exceeding thirty-six hundred dollars and not 
less than twelve hundred dollars, provided, such earn- 
ings shall be computed upon the basis of the scale which 
he received or would have been entitled to receive had 
he been at work, during the thirty days next preceding 
the accident; and, if the period of the workman's em- 
ployment by the said employer had been less than one 
year, then the amoimt of his earnings during the said 
year shall be deemed to be fifty-two times his average 
weekly earnings during the period of his actual employ- 
ment under said employer; provided, that the amoimt of 
any payment made under this act and any lump sum 
paid hereunder for such injury from which death may 
thereafter result shall be deducted from such sum; and 
provided, however, that if the workman does not leave 
any dependents, citizens of and residing at the time of 
the accident in the United States or the Dominion of 
Canada, the amoimt of compensation shall not exceed 
in any case seven hundred and fifty dollars. (2) If the 
workman does not leave any such dependents, but leaves 
any dependents, in part dependent upon his earnings^ 
such proportion of the amoimt payable under the fore- 
going provisions of this section, as may be agreed upon 
or determined to be proportionate to the injury to the 



2286 Masteb and Sbbvant. §871 



said dependent; and (3) If he leaves no dependents, the 
reasonable expense of his medical attendance and bur- 
ial, not exceeding one hundred dollars, (b) Where total 
incapacity for work results from injury, periodical pay- 
ments during such incapacity, commencing at the end 
of the second week, equal to fifty per cent of his average 
weekly earnings computed as provided in section 12, 
but in no case less than six dollars per week or more than 
fifteen dollars per week, (c) When partial incapacity 
for work results from injury, periodical payments during 
such incapacity, commencing at the end of the second 
week, shall not be less than twenty-five per cent, nor 
exceeding fifty per cent, based upon the average weekly 
earnings computed as provided in section 12, but in no 
case less than three dollars per week or more than twelve 
dollars per week; provided, however, that if the work- 
man is under twenty-one years of age at the date of the 
accident and the average weekly earnings are less than 
ten dollars his compensation shall not be less than sev- 
enty-five per cent of his average earnings. No such pay- 
ment for total or partial disability shall extend over a 
I)eriod exceeding ten years. 

Section 12. Rule for compensation. For the pur- 
poses of the provisions of this act relating to ''earnings'' 
and "average earnings" of workman, the following 
rules shall be observed: (a) ^^ Average earnings^' shall be 
computed in such manner as is best calculated to give 
the average rate per week at which the workman was 
being remunerated for the fifty-two weeks prior to the 
accident. Provided, that where by reason of the short- 
ness of time during which the workman has been in the 
employment of his employer, or the casual nature or the 
terms of the employment, it is impracticable to com- 
pute the rate of remimeration, regard shall be had to 
the average weekly amount which, during the twelve 
months previous to the accident, was being earned by a 
person in the same grade employed at the same work by 
the same employer, or, if there is no person employed, 
by a person in the same grade employed in the same class 



§ 871 Kansas 1911 Statxttb. 2287 



of employment and in the same distriot. (b) Where the 
workman had entered into concurrent contracts of serv- 
ice with two or more employers under which he worked 
at one time for one such employer and at another time 
for another such employer, his "earnings" and his "av- 
erage earnings" shall be computed as if his earnings 
under all such contracts were earnings in the employ- 
ment of the employer for whom he was working at the 
time of the accident, (c) Employment by the same 
employer shall be taken to mean employment by the 
same employer in the grade in which the workman was 
employed at the time of the accident, uninterrupted by 
his absence of work due to illness or any other unavoidable 
cause* (d) Where the employer has been accustomed 
to pay to the workman a sum to cover any special ex- 
I>enses entailed upon by the nature of his employment, 
the sum so paid shall not be reckoned as part of the 
earnings, (e) In fixing the amoimt of the pajrment, 
allowance shall be made for any pajrment or benefit 
which the workman may receive from the employer 
during his i>eriod of incapacity, (f) In the case of 
partial incapacity the pajrments shall be computed to 
equal, as closely as possible, fifty per cent of the difference 
between the amount of the "average earnings" of the 
workman before the accident, to be computed as herein 
provided, and the average amount which he is most 
probably able to earn in some suitable emplojrment or 
business after the accident, subject however, to the 
limitations hereinbefore provided. 

Section 13. Payiients to the injubed wobkman. 
The pajrments shall be made at the same time, place 
and in the same manner as the wages of the workman 
were payable at the time of the accident, but a judge of 
any district court having jurisdiction upon the applica- 
tion of either party inay modify such regulation in a 
particular case as to him may seem just. 

Section 14. Compensation to dependents, etc. 
Where death results from the injury and the dei>endents 
of the deceased workman as herein defined, have agreed 

8 M. ft S.— 20 



2288 Mastbb and Sbbvant. §871 



to accept coini>ensation, and the amount of such com- 
I)ensation and the apportionment thereof between them 
has been agreed to or otherwise determined, the em- 
ployer may pay such compensation to them accordingly 
(or to an administrator if one be appointed) and there- 
upon be discharged from all further liabiUty for the 
injury. Where only the apportionment of the agreed 
compensation between the dependents is not agreed to, 
the employer may pay the amount into any district 
court haying jurisdiction, or to the administrator of the 
deceased workman, with the same effect. Where the 
compensation has been so paid into court or to an ad- 
ministrator, the proper court, upon the petition of such 
administrator or any of such dependents, and upon such 
notice and proof as it may order shall determine the dis- 
tribution thereof among such dependents. Where there 
are no dependents, medical and funeral expenses may be 
paid and distributed in like manner. 

Section 15. The payments due under this act, as well 
as any judgment obtained thereunder, shaJl not be as- 
signable or svhject to levy, execution or attachment, except 
for medicine, medical attention and nursing and no claim 
of any attorney-^trlaw for services rendered in securing 
such indemnity or compensation or judgment shall be an 
enforceable lien thereon, imless the same has been approved 
in writing by the judge of the court where said case was 
tried; but if no trial was had, then by any judge of the 
district court of this state to whom such matter has been 
regularly submitted, on due notice to the party and parties 
in interest of such submission. 

Section 16. Reports as to accidents and com- 
pensation. Employers affected by this act shall re- 
port annually to the state commissioner and factoiy 
inspector such reasonable particulars in regard thereto 
as he may require, including particulars as to all releases 
of liability under this act and any other law. The 
penalty for failure to report or for false report shall in- 
validate any such release of liabiUty. 



§ 871 Kansas 1911 Statute. . 2289 



Section 17. Medical examination, (a) After an 
injury to the employees, if so requested by his employer, 
the employee must submit himself for examination at 
some reasonable time to a reputable physician selected 
by the employer, and from time to time thereafter during 
the pendency of his claim for compensation, or during 
the receipt by him for payment under this act, but he 
shall not be required to so submit himself, more than once 
in two weeks unless in accordance with such orders as 
may be made by the proper court or judge thereof. 
Either party may upon demand require a report of any 
examination made by the physician of the other party 
upon payment of a fee of one dollar therefor, (b) If 
the employees request he shall be entitled to have a phy- 
sician of his own selection present at the time to par- 
ticipate in such examinations, (c) Unless there has 
been a reasonable opportunity thereafter for such phy- 
sician selected by the employee to participate in the 
examination in tiie presence of the physician selected 
by the employer, the physician selected by the employer 
shall not be permitted afterwards to give evidence of the 
condition of the employee in a dispute as to the injury, 
(d) Except as provided herein in this act there shall be 
no other disqualification or privilege preventing the 
testimony of a physician who actually makes an examinar 
tion. 

Section 18. Medical examination by neutral 
PHYSICIAN. In case of a dispute as to the injury, the 
committee, or arbitrator as hereinafter provided, or the 
judge of the district court shall have the power to employ 
a neutral physician of good standing and ability, whose 
duty it shall be, at the expense of the parties to make an 
examination of the injured person, as the court may 
direct, on the i)etition of either or both the employer 
and the employee or dependents. 

Section 19. Testimony by court physician. If 
the employer or the employee has a physician make such 
an examination and no reasonable opportunity is given 
to the other party to have his physician make an exami- 



2290 Masteb and Sebvant. §871 

nation, then, in case of a dispute as to the injury, the 
physician of the party malring such examination shall 
not give evidence before the court unless a neutral phy- 
sician either has examined or then does examine the 
injured employee and give testimony regarding the in- 
juries. 

Section 20. Refusal of medical examination. 
If the employee shall refuse examination by physician 
selected by the employer, with the presence of a physician 
of his own selection, and shall refuse an examination 
by the physician appointed by the court, he shall have 
no right to compensation during the period from refusal 
until he, or some one in his behalf, notifies the employer 
or the court that he is willing to have such examination. 

Section 21. Certificate of physician. A phy- 
sician making an examination shall give to the employer 
and to the workman a certificate as to the condition of 
the workman, but such certificate shall not be competent 
evidence of that condition unless supported by his testi- 
mony if his testimony would have been admissible. 

Section 22. Notice and claim. Proceedings for 
recovery of compensation under this act shall not be 
maintainable unless written notice of the accident^ staling 
the time, place, and particvlara thereof, and the name 
and address of the person injured, has been given within 
ten days after the accident, and unless a claim for com- 
I)ensation has been made within six months after the 
accident, or in case of death, within six months from the 
date thereof. Such notice shall be delivered by regis- 
tered mail, or by delivery to the employer. The want 
of, or any defect in such notice, or in its service, shall 
not be a bar unless the employer proves that he has, 
in fact, been thereby prejudiced, or if such want or defect 
was occasioned by mistake, physical or mental incapacity 
or other reasonable cause, the failure to make a claim 
within the period above specified shall not be a bar, 
if such failiure was occasioned by a mistake, physical or 
mental incapacity or other reasonable cause. . 



§ 871 Kansas 1911 Statute. 2291 



Seotion 23. Agreements. Compensation due under 
this act may be settled by a^eement. Every such agree- 
ment, other than a release, shall be in the form herein- 
after provided. 

Section 24. Arbitrations. If compensation be not 
so settled by af:reement: (a) If any committee repre- 
sentative of the employer and the workman exists, 
organized for the purpose of settling disputes under this 
act, the matter shall, unless either party objects by notice 
in writing delivered or sent by registered mail to the 
other party before the committee meets to consider the 
matter, be settled in accordance with its rules by such 
committee or by an arbitrator selected by it; (b) If 
either party so objects, or there is no such committee, 
or the committee or Uie arbitrator to whom it refers 
the matter fails to settle it within sixty days from the 
date of the claim, the matter may be settled by a single 
arbitrator agreed upon by the parties, or appointed by 
any judge of a court where an action might be main- 
tained. The consent to arbitration shall be in writing 
and signed by the parties and may Umit the fees of the 
arbitrator and the time within which the award must be 
made. And unless such consent and the order of ap- 
pointment expressly refers other questions, only the 
question of the amoimt of compensation shall be deemed to 
be in issue. 

Section 25. The duties op arbitrator. The ar- 
bitrator shall not be bound by technical rules of pro- 
cedure or evidence, but shall give the parties reasonable 
opportunity to be heard and act reasonably and without 
partiality. He shall make and file his award, with 
the consent to arbitration attached in the office of the 
clerk of the proper district court within the time limited 
in the consent, or if no time limit is fixed thereon, within 
sixty days after his selection, and shall give notice of such 
filing to the parties by mail. 

Section 26. Arbitrator's pees. The arbitrator's 
fees shall be fixed by the consent to arbitration or be 
af:reed to by the parties before the arbitration, and if 



2292 Mastbb and Sbbvant. §871 



not so fixed or a^eed to, they shall not exceed ten dollars 
per day, for not to exceed ten days and disbursements 
for expense. The arbitrator shall tax or apportion 
the costs of such fees in his discretion and shall add the 
amount taxed or apportioned against the employer 
to the first payment made under the award, and he shall 
note the amount of his fees on the award and shall have 
a lien therefor on the first payments due under the award. 

Section 27. Form op agreements and award. 
Every af:reement for compensation and every award 
shall be in writing, signed and acknowledged by the parties 
or by the arbitrator or secretary of the committee here- 
inbefore referred to, and shall specify the amoimt due 
and unpaid by the employer to the workman up to the 
date of the agreement or award, and, if any, the amoimt 
of the payments thereafter to be paid by the employer 
to the workman and the length of time such payments 
shall continue. 

Section 28. Filing Agreements, awards, etc. It 
shall be the duty of the employer to file or cause to be 
filed every releiase of liability hereunder, every agreement 
for or award of compensation, or modifying an agreement 
for or award of compensation, under this act, if not filed 
by the committee or arbitrator, to which he is a party, 
or a sworn copy thereof, in the office of the district court 
in the county in which the accident occurred within sixty 
days after it is made, otherwise it shall be void as against 
the workman. The said clerk shall accept, receipt for, 
and file any such release, agreement or award, without 
fee, and record and index it in the book kept for that 
purpose. Nothing herein shall be construed to prevent 
the workman from filing such agreement or award. 

Section 29. Agreements and awards — ^whbn can- 
celed. At any time within one year after an agreement 
or award has been so filed, a judge of a district court 
having jurisdiction may, upon the application of either 
party, cancel such agreement or award, upon such terms 
as may be just, if it be shown to his satisfaction that 
the workman has returned to work and is earning ap- 



^ 871 Kansas 1911 Statute. 2293 



proximately the same or higher wages as or than he did 
before the accident, or that the agreement or award 
has been obtained by fraud or undue influence, or that 
the committee or arbitrator making the award acted 
without authority or was guilty of serious misconduct, 
or that the award is grossly inadequate or grossly exces- 
sive, or if the employee absents himself so that a reason- 
able examination of his condition cannot be made, or 
has departed beyond the boundaries of the United States 
or Canada. 

Section 30. Staying pboceedinos upon agreement 
OR AWARD. At any time after the filing of an agreement 
or award and before judgment has been granted thereon, 
the employer may stay proceedings thereon by filing in 
the office of the clerk of the district court wherein such 
agreement or award is filed: (a) A proper certificate 
of a qualified insurance company that the amount of the 
comi)ensation to the workman is insured by it; (b) A 
proper bond undertaking to seciure the payment of the 
compensation. Such certificate or bond shall first be 
approved by a judge of the said district court. 

Section 31. Judgment upon agreement or award. 
At any time after an agreement or award has been filed 
the workman may apply to the said district court for 
judgment against the employer for a lump sum equal to 
eighty per cent of the amount of payments due and 
unpaid and prospectively due under the agreement or 
award; and, unless the agreement or award be stayed, 
modified or canceled, or the liabiUty thereunder be re- 
deemed or otherwise discharged, the court shall examine 
the workman under oath, and if satisfied that the ap- 
plication is made because of doubt as to the security of 
his compensation, shall compute the sum and direct 
judgment accordingly, as if in an action; provided, that 
if the employer shall give a good and sufficient bond, 
approved by the court, no execution shall issue on such 
judgment so long as the employer continues to make 
payments in accordance with the original agreement or 
award undiminished by the discount. 



2294 Masteb and Ssbvakt, §871 



Section 32. Rbvibw ob modification of agbeement 
OB AWABD. An agreement or award may be modified 
at any time by a subsequent agreement; or, at any time 
after one year from the date of filing; it may be reviewed, 
upon the application of either party on the ground that 
the incapacity of the workman has subsequently increased 
or diminished. Such application shall be made to the 
said district court; and, unless the parties consent to 
arbitration, the court may appoint a medical practitioner 
to examine the woi^kman and report to it; and upon 
his report and after hearing the evidence of the i>arties, 
the court may modify such agreement or award, as may 
be just, by ending, increasing or diminishing the compensar 
tion, subject to the limitations hereinbefore provided. 

Section 33. Redemption of liabilitt. Where any 
payment has been continued for not less than six months 
the Uability therefor may be redeemed by the employer 
by the payment to the workman of a lump sum of an 
amount equal to eighty i>er cent of the payments which 
may become due according to the award, such amount 
to be determined by agreement, or, in default thereof, 
upon application, to a judge of a district court having 
jurisdiction. Upon paying such amount the employer 
shall be discharged from all further liability on account 
of the injury, and be entitled to a duly executed release, 
upon filing which or other due proof of payment, the 
Uability upon any agreement or award shall be discharged 
of record. 

Section 34. Insxjbance. Where the payment of com- 
pensation to the workman is insured, by a policy or poli- 
cies, at the expense of the employer, the insurer shall 
be subrogated to the rights and duties under this act of 
the employer, so far as appropriate. 

Section 35. Coubts. All references hereinbefore to 
a district court of the state of Kansas having jurisdiction 
of a civil action between the parties shall be construed 
as relating to the then existing code of civil procedure. 
Such court shall make all rules necessary and appropriate 
to carry out the provisions of this act. 



§ 871 Kansas 1911 Statute. 2295 



Seotion 36. Actions. A workmarCs right to compenr- 
aation under this act^ may^ in default of agreement or ar^ 
hitrationj he determined and enforced by action in any court 
of competent jurisdiction. In every such action the right 
to trial by jury shall be deemed waived and the case tried 
by the court without a jury, unless either party, with his 
notice of trial, or when the case is placed upon the cal- 
endar, demand a jury trial. The judgment in the action, 
if in favor of the plaintiff, shall be for a lump sum equal 
to the amount of the payments then due and prospectively 
due under this act, with interest on the payment over- 
due, or, in the discretion of the trial judge, for periodical 
payments as in an award. Where death results from inn 
jury J the action shall be brought by the dependent or 
dependents entitled to the compensation or by the legal 
representative of the deceased for the benefit of the 
dependents as herein defined; and in such action the 
judgment may provide for the proportion of the award 
to be distributed to or between the several dependents; 
otherwise such proportions shall be determined by the 
proper probate court. An action to set aside a release or 
other discharge of liahility on the ground of fraud or mental 
incompetency may be joined with an action for com- 
I)ensation under this act. No action or proceeding 
provided for in this act shall be brought or maintained 
outside of the state of Kansas, and notice thereof may be 
given by publication against nonresidents of the state 
in the manner now provided by article 7 of chapter 95, 
General Statutes of Kansas of 1909, so far as the same 
may be applicable and by personal service of a true copy 
of the first publication within twenty-one days after the 
date of the said first publication unless excused by the 
court upon proper showing that such service cannot be 
made. 

Section 37. When the catjsb op action accbttes. 
The cause of action shall be deemed in every case, in- 
cluding a case where death results from the injury, to 
have accrued to the injured workman at the time of the 
accident; and the time limited in which to commence an 



2296 Masteb and Sebvajtt. ^871 



actioii for compensatioii therefor shall run as against 
him, his legal representatives and dependents from that 
date. 

Section 38. Attobnet'b liens. Contingent fees of 
attorneys for services and proceedings under this act 
shall in every case be subject to the approval by the 
court. 

Section 39. Certificate required. If the superin- 
tendent of insurance by and with the advice and written 
approval of the attorney general certifies that any scheme 
of compensation, benefit or insiurance for the workmen 
of an employer in any employment to which this act 
applies, whether or not such scheme includes other 
employers and their workmen, provides scales of com- 
pensation not less favorable to the workmen and their 
dei)endents than the corresponding scales contained in 
this act, and that, where the scheme provides for con- 
tributions by the workman, the scheme confers benefits 
at least equivalent to those contributions, in addition 
to the benefits to which the workman would have been 
entitled under this act or their equivalents, the employer, 
may, while the certificate is in force, contract with any 
of his workmen that the provisions of the scheme shall 
be substituted for the provisions of this act ; and thereupon 
the employer shall be liable only in accordance with the 
scheme; but, save as aforesaid, this act shall not apply 
notwithstanding any contract to the contrary made after 
this act becomes law. 

Section 40. Conditions of certificate. No scheme 
shall be so certified which does not contain suitable pro- 
visions for the equitable distribution of any moneys or 
securities held for the purpose of the scheme, after due 
provision has been made to discharge the liabiUties 
already accrued, if and when such certificate is revoked 
or the scheme otherwise terminated. 

Section 41. Certificate to be revocable. If at 
any time the scheme no longer fulfills the requirements 
of this article, or is not fairly administered, or other 
valid and substantial reasons therefor exist, the super- 



§871 Kansas 19X1 Statute. 2297 

intendent of insurance by and with the attorney general 
shall revoke the certificate and the scheme shall thereby 
be terminated. 

Section 42. Information to be reported. Where 
a certified scheme is in effect the employer must answer all 
such inquiries and furnish all such accounts in regard 
thereto as may be required by the superintendent. 

Section 43. The superintendent of insurance may 
make all rules and regulations necessary to carry out the 
purposes of the four proceeding sections. 

Section 44. AU employers as defined by this act who 
shall elect to come within the provisions of this act and of all 
acts amendatory hereof shall do so by filing a statement 
to such effect with the secretary of state of this state at 
an^ time after taking effect of this act, which election shall 
be binding upon such employer for the term of one year 
from the date of the filing of such statement, and there- 
after, without further act on his part, for successive terms 
of one year each, unless such employer shall, at least sixty 
days prior to the expiration of such first or of any succeed- 
ing year, file in the office of the secretary of state a notice 
in writing to the effect that he withdraws his election to be 
subject to the provisions of this act. Notice of such eUo- 
tion or withdrawal shall he forthwith posted hy stich employer 
in conspicuous places in and about his place of business. 

Section 45. Every employee entitled to come within the 
provisions of this act^ shall be presumed to have done so 
unless he serve written notice^ before injury^ upon his 
employer that he elects not to accept thereunder and there- 
after any such employee desiring to change his election 
shaU only do so by serving written notices thereof upon his 
employer. Any contract wherein an employer requires 
of an employee as a condition of employment that he 
shall elect not to come within the provisions of this act 
shall be void. 

Section 46. In any action to recover damages for a 
personal injury sustained within this state by an employee 
(entitied to come within the provisions of this act) while 
engaged in the line of his duty as such or for death result- 



2298 Masteb and Servakt. ^871 



ing from peErsonal injury so sustained, in which recovery 
is sought upon the ground of want of due care of the employer 
or of any officer^ agent or servant of the employ &y where such 
employer is within the provisions hereof^ it shall not he a 
defense of any employer (as herein in this act defined) 
who shall not have elected, as herein before provided, to 
come within the provisions of this act; (a) That the emr 
ployee either expressly or impliedly assumed the risk of the 
hazard complained of; (b) that the injury or death was caused 
in whole or in part by the want of due care of a feUow- 
servant; (c) that siLch employee was guilty of contributory 
negligence hut such contributory negligence of said employee 
shall he considered by the jury in assessing the amount of 
recovery. 

Section 47. In an action to recover damages for a 
I>ersonal injnry sustained within this state by an employee 
(entitled to come within the provisions of this act) while 
engaged in the line of his duty as such or for death result- 
ing from i>ersonal injury so sustained in which recovery 
is sought upon the ground of want of due care of the 
employer or of any officer, agent or servant of the em- 
ployer, and where such employer has elected to come and is 
within the provisions of this act cls hereinbefore provided^ it 
shall be a defense for such employer in all cases where said 
employee has elected not to come within the provisions 
of this act; (a) That the employee either expressly or imr 
pliedly assumed risk of the hazard complained of; (b) that 
the injury or death was caused in whole or in part by the 
want of due care of afeUow-servant; (c) that the said employee 
was guilty of contributory negligence^ provided^ however, that 
none of these defenses shall be available where the injury was 
caused by the wilful or gross negligence of such employer , or 
of any managing officer, or managing agent of said employer 
or where under the law existing at the time of the death or 
injury such defenses are not available. 

Section 48. Nothing in this act shall be construed 
to amend or repeal section 6999 of the General Statutes of 
Kansas of 1909, or House bill No. 240 of the session of 
1911, the same being ''An act relating to the Uability of 



§ 872 Massaohusbtts 1911 Statute. 2299 



common carriers by railroads to their employees in 
certain cases and repealing all acts and parts of acts 
so far as the same are in conflict herewith." 

Section 49. This act shall take effect and be in force 
from and after its publication in the statute book, and the 
first day of January, 1912. 

Approved March 14, 1911. 

§ 872. Massachusetts statute, (Laws 1911, c. 751.) 

An act relative to payments to employees for personal 
injuries received in the course of their employment and 
to the prevention of such injuries. 

Be it enacted, etc., as follows: 

Pakt I. 

MODIFICATION OF BEMEDIES. 

Section 1. In an action to recover damages for personal 
injury sustained by an employee in the course of his 
employment, or for death resulting from personal injury 
so sustained, it shaU not be a defense: 

1. That the employee was negligent; 

S. That the injury was caused by the negligence of a fellow 
employee; 

S. Thai the employee had assumed the risk of the injury. 

Section 2. The provisions of section one shall not 
apply to actions to recover damages for personal in- 
juries st^tained by domestic servants and farm laborers. 

Section 3. The provisions of section one shall not 
apply to actions to recover damages for personal injuries 
sustained by employees of a subscriber. 

Section 4. The provisions of sections one hundred 
and twenty-seven to one hundred and thirty-five, inclu- 
sive, and of one hundred and forty-one to one hundred 
and forty-three, inclusive, of chapter five hundred and 
fourteen of the acts of the year nineteen hundred and 
nine, and of any acts in amendment thereof, shall not 
apply to employees of a subscriber while this act is in 
effect. 



2300 I^Iasteb and Sebvakt. ^ 872 



Seotioii 5. An employee of a evhscriber shall he held 
to have waived hie right of action at common law to recover 
damages for personal injuries if he shall not have given 
his employer, at the time if his contract of hire, notice 
in writing that he claimed such right, or if the contract 
of hire was made before the employer became a sub- 
scriber, if the employee shall not have given the said 
notice within thirty days of notice of such subscription. 
An employee who has given notice to his employer that 
he claimed his right of action at common law may waive 
such claim by a notice in writing which shall take effect 
five days after it is delivered to the employer or his agent. 

Part II. 

PAYMENTS. 

Section 1. If an employee who has not given notice 
of his claim of conmion law rights of action, as provided 
in Part I, section five, or who has given such notice and 
has waived the same, receives a personal injury arising 
out of and in the course of his employment, he shall be 
paid compensation by the association, as hereinafter 
provided, if his employer is a subscriber at the time of 
the injury. 

Section 2. If the employee is injured hy reason of hie 
serious and wilful misconduct^ he shall not receive com- 
pensation. 

Section 3. // the employee is injured hy reason of the 
serious and wilful misconduct of a svbscriher or any person 
regularly entrusted with and exercising the powers of superin- 
tendencCf the amounts of compensation hereinafter provided 
shall he douhled. In such case the subscriber shall repay 
to the association the extra compensation paid to the 
employee. 

Section 4. No compensation shall be paid under this 
act for any injury which does not incapacitate the em- 
ployee for a period of at least two weeks from earning 
full wages, but if incapacity extends beyond the period 



§ 872 Massachusetts 1911 Statute. 2301 



of two weeks, compensation shall begin on the fifteenth 
day after the injury. 

Seotion 5. During the first two weeks after the injury, 
the association shall furnish reasonable medical and hos^ 
pital services, and medicines when they are needed. 

Section 6. If death results from the injury, the as- 
sociation shall pay the dependents of the employee, 
wholly dependent upon his earnings for support at the 
time of the injmy, a weekly payment equal to one half 
his average weekly wages, but not more than ten dollars 
nor less than four dollars a week, for a period of three 
hundred weeks from the date of the injmy. If the em- 
ployee leaves dependents only partly dependent upon 
his earnings for support at the time of his injury, the 
association shall pay such dependents a weekly compen- 
sation equal to the same proportion of the weekly pay- 
ments for the benefit of persons wholly dex>endent as 
the amount contributed by the employee to such partial 
dependents bears to the annual earnings of the deceased 
at the time of his injmy. When weekly payments have 
been made to an injured employee before his death, the 
comx>ensation to dependents shall begin from the date of 
the last of such payments, but shall not continue more 
than three hundred weeks from the date of the injmy. 

Section 7. The foUovring persons shall he conclvMvely 
presumed to he wholly dependent for support upon a de- 
ceased employee: 

(a) A wife upon a husband with whom she lives at 
the time of his death. 

(b) A husband upon a wife with whom he lives at the 
time of her death. 

(c) A child or children under the age of eighteen 
years (or over said age, but physically or mentally in- 
capacitated from earning) upon the parent with whom 
he is or they are living at the time of the death of such 
parent, there being no surviving dependent parent. In 
case there is more than one child thus dex>endent, the 
death benefit shall be divided equally among them. 



2302 Masteb and Sebvant. ^872 



In all other cases questions of dependency, in whole 
or in part, shall be determined in aceordance with the 
fact, as the fact may be at the time of the injury; and in 
such other cases, if there is more than one person wholly 
dependent, the death benefit shall be divided equally 
among them, and persons partly dependent, if any, shall 
receive no part thereof; if there is no one wholly dependent 
and more than one person partly dependent, the death 
benefit shall be divided among them according to the 
relative extent of their dependency. 

Section 8. If the employee leaves no dependents, 
the association shall pay the reasonable expense of his 
last sickness and burial, which shall not exceed two 
himdred dollars. 

Section 9. While the incapacity for work resulting 
from the injury is total, the association shall pay the 
injured employee a weekly compensation equal to one 
half his average weekly wages, but not more than ten 
dollars nor less than four dollars a week; and in no case 
shall the period covered by such compensation be greater 
than five himdred weeks, nor the amount more than three 
thousand dollars. 

Section 10. While the incapacity for work resulting from 
the injury is partial^ the association shall pay the injured 
employee a weekly compensation equal to one half the 
difference between his average weekly wages before the 
injury and the average weekly wages which he is able 
to earn thereafter, but not more than ten dollars a week; 
and in no case shall the period covered by such compen- 
sation be greater than three hundred weeks from the 
date of the injury. 

Section 11. In case of the following specified injuries 
the amounts hereinafter named shall be paid in addition 
to all other compensation: 

(a) For the loss by severance of both hands at or 
above the wrist, or both feet at or above the anMe, or 
the loss of one hand and one foot, or the entire and ir- 
recoverable losQ of the sight of both eyes, one half of the 
average weekly wages of the injured person, but not more 



^ 872 Massaohusbtts 1911 Statutb. 2303 



than ten dollars nor less than four dollars a week, for a 
I>eriod of one hundred weeks. 

(b) For the loss by severance of either hand at or 
above the wrist, or either foot at or above the ankle, 
or the entire and irrecoverable loss of the sight of either 
eye, one half the average weekly wages of the injured 
person, but not more than ten dollars nor less than four 
dollars a week, for a i)eriod of fifty weeks. 

(c) For the loss by severance at or above the second 
joint of two or more fingers, including thumbs, or toes, 
one half the average weekly wages of the injured person, 
but not more than ten dollars nor less than four dollars 
a week, for a period of twenty-five weeks. 

(d) For the loss by severance of at least one phalange 
of a finger, thumb, or toe, one half the average weekly 
wages of the injured person, but not more than ten 
dollars nor less than four dollars a week, for a period of 
twelve weeks. 

Section 12. No savings or insurance of the injured 
employee, independent of this act, shall be taken into 
consideration in determining the compensation to be 
paid hereunder, nor shall benefits derived from any other 
source than the association be considered in fixing the 
comi)ensation imder this act. 

Section 13. The comi)ensation payable under this 
act in case of the death of the injured employee shall 
be paid to his legal representative; or, if he has no legal 
representative, to his dependents; or, if he leaves no 
dei)endents, to the i)ersons to whom payment of the 
expenses for the last sickness and burial are due. If 
the payment is made to the legal representative of the 
deceased employee, it shall be paid by him to the de- 
pendents or other persons entitled thereto under this 
act. 

Section 14. If an injured employee is mentally in- 
competent or is a minor at the time when any right or 
ixrivilege accrues to him under this act, his guardian or 
next friend may in his behalf claim and exercise such 
right or privilege. 

3 M. ft 8.— 21 



2304 Mastbb akd Sebyant. ^872 



Section 15. No proceedings for compensation for 
an injury under this act shall be maintained unless a 
notice of the injury shall have been given to the associa- 
tion or subscriber as soon as practicable after the happen- 
ing thereof, and unless the claim for compensation with 
respect to such injury shall have been made within six 
months after the occurrence of the same; or, in case of 
the death of the employee, or in the event of his physical 
or mental incapacity, within six months after death 
or the removal of such physical or mental incapacity. 

Section 16. The said notice shall be in writing, and 
shall state in ordinary language the time, place and cause 
of the injury; and shall be signed by the person injiu*ed, 
or by a person in his behalf, or, in the event of his death, 
by hLs legal representatives or by a person in his behalf. 

Section 17. The notice shall be served upon the as- 
sociation, or an officer or agent thereof, or upon the sub- 
scriber, or upon one subscriber, if there are more sub- 
scribers than one, or upon any officer or agent of a cor- 
poration if the subscriber is a corporation, by delivering 
the same to the person on whom it is to be served, or 
leaving it at his residence or place of business, or by 
sending it by registered mail addressed to the person or 
corporation on whom it is to be served, at his last known 
residence or place of business. 

Section 18. A notice given under the provisions of 
this act shall not be held invalid or insufficient by reason 
of any inaccuracy in stating the time, place or cause 
of the injury, unless it is shown that it was the intention 
to mislead and the association was in fact misled thereby. 
Want of notice shall not be a bar to proceedings under this 
act, if it be shown that the association, subscriber, or 
agent had knowledge of the injury. 

Section 19. After an employee has given notice of 
an injury, as provided by this act, and from time to time 
thereafter during the continuance of his disability he 
shall, if so requested by the association, submit himself 
to an examinaiion by a physician or surgeon authorized 
to practice medicine under the laws of the oommonwealthy 



§ 872 Massachusetts 1911 Statute. 2305 



furnished and paid for by the association. The em- 
ployee shall have the right to have a physician provided 
and paid for by himself present at the examination. If 
he refuses to submit himself for the examination, or in 
any way obstructs the same, his right to compensation 
shall be suspended, and his compensation during the 
period of suspension may be forfeited. 

Section 20. No agreement by an employee to waive his 
rights to compensation under this act shall be valid. 

Section 21. No payment under this act shall be assigrir 
able or subject to aUachmenty or be liable in any way for any 
debts. 

Section 22. Whenever any weekly pasrment has been 
continued for not less than six months, the liability 
therefor may in unusual cases be redeemed by the payment 
of a lump sum by agreement of the parties, subject to the 
approval of the industrial accident board. 

Pabt III. 

PROCEDURE. 

Section 1. There shall be an industrial accident board 
consisting of three members, to be appointed by the 
governor, by and with the advice and consent of the 
council, one of whom shall be designated by the governor 
as chairman. The term of office of members of this 
board shall be six years, except that when first consti- 
tuted one member shall be appointed for two years, one 
for four years, and one for six years. Thereafter one 
member shall be appointed every second year for the full 
term of six years. 

Section 2. The salaries and expenses of the board 
shall be paid by the commonwealth. The salary of the 
chairman shall be sixty-five hundred dollars a year, and 
the salary of the other members shall be six thousand 
dollars a year each. The board may appoint a secretary 
at a salary of not more than three thousand dollars a 
year, and may remove him. It shall also be allowed an 
annual sum, not exceeding ten thousand dollars, for 



2306 Masteb and Sebyant. ^ 872 

clerical service, and traveling and other necessary ex- 
I>enses. The board shall be provided with an office in 
the state house or in some other suitable building in the 
city of Boston, in which its records shall be kept. 

Section 3. The hoard may make rulea not inconsistent 
with this act for carrying out the provisions of the act. 
Process and procedure under this act shall be as summary 
as reasonably may be. The board or any member thereof 
shall have the power to subpoena witnesses and to examine 
such parts of the books and records of the parties to a 
proceeding as relate to questions in dispute. 

Section 4. If the association and the injured employee 
reach an agreement in regard to compensation under this 
act, a memorandum of the agreement shall be filed with 
the industrial accident board and, if approved by it, 
thereupon the memorandum shaU for aU purposes he en- 
forcible a^ a decree of the superior court. Such agreements 
shall be approved by said board only when the terms 
conform to the provisions of this act. 

Section 5. If the association and the injured employee 
fail to reach an agreement in regard to compensation 
under this act, either party may notify the industrial 
accident board who shall thereupon call for the formation 
of a committee of arbitration. The committee of arbitra- 
tion shall consist of three members, one of whom shall 
be a member of the industrial accident board, and shall 
act as chairman. The other two members shall be named, 
respectively, by the two parties. 

Section 6. It shall be the duty of the industrial ac- 
cident board, upon notification that the parties have 
failed to reach an agreement, to request both parties 
to appoint their respective representatives on the com- 
mittee of arbitration. The board shall designate one of 
its members to act as chairman, and, if either party does 
not appoint its member on this committee within seven 
days after notification, as above provided, the board or 
any member thereof shall fill the vacancy and notify 
the parties to that effect. 



§ 872 Massaohttsbtts 1911 Statute. 2307 



Section 7. The committee of arbitration shall make 
such inquiries and investigations as it shall deem neces- 
sary. The hearings of the committee shall be held at the 
place where the injury occurred, and the decision of the 
committee shall be filed with the industrial accident 
board. Unless a claim for a review is filed by either 
party within seven days, the decision shall be enforcible 
as if it were a decree of the superior court. 

Section 8. The industrial accident board or any 
member thereof may appoint a duly qualified impartial 
physician to examine the injured employee and to report. 
The fee for this service, shall be five dollars and traveling 
expenses, but the board may allow additional reasonable 
amounts in extraordinary cases. 

Section 9. The arbitrators named by or for the parties 
to the dispute shall each receive five dollars as a fee for 
his services, but the industrial accident board or any 
member thereof may allow additional reasonable amounts 
in extraordinary cases. The fees shall be paid by the 
association, which shall deduct an amount equal to one 
third of the sum from any compensation found due the 
employee. 

Section 10. If a claim for a review is filed, as provided 
in Part III, section seven, the board shall hear the parties 
and file its decision with the records of the proceedings. 

Section 11. There shaU he a right of appeal to the 
supreme judicial court on gueetione of law^ and the in- 
dustrial accident board may report questions of law to 
the supreme judicial court for its determination. 

Section 12. Any weekly payment under this act may 
he reviewed by the industrial accident board at the request 
of the association or of the employee; and on such review 
it may be ended, diminished or increased, subject to the 
TnnTiTmim and Tniuimum amounts above provided, if 
the board finds that the condition of the employee 
warrants such action. 

Section 13. Fees of attorneys and physicians for serv- 
ices tmder this act shall be subject to the approval of 
the industrial accident board. 



2308 Master akd Sebvant. ^872 

Section 14. If the committee of arbitration, industrial 
accident board, or any court before whom any proceedings 
are brought under this act determines that such proceed- 
ings have been brought, prosecuted, or defended without 
reasonable ground, it shall assess the whole cost of the 
proceedings upon the party who has so brought, prose- 
cuted or defended them. 

Section 15. Where the injury for which compensation 
is payable under this act was caused under circumstances 
creating a legal Uability in some person other than the 
subscriber to pay damages in respect thereof, the em- 
ployee may at his option proceed either at law against 
that person to recover damages, or against the associa- 
tion for compensation under this act, but not against both; 
and if compensation be paid under this act, the associa- 
tion may enforce in the name of the employee, or in its 
own name and for its own benefit, the liabiUty of such 
other person. 

Section 16. All questions arising under this act, if 
not settled by agreement by the parties interested therein, 
shall, except as otherwise herein provided, be determined 
by the industrial accident board. The decisions of the 
industrial accident board shall for all purposes be en- 
forcible as if they were decrees of the superior court. 

Section 17. If a subscriber enters into a contract, 
written or oral, with an independent contractor to do 
such subscriber's work, or if such a contractor enters 
into a contract with a sub-contractor to do all or any part 
of the work comprised in such contract with the sub- 
scriber, and the association would, if such work were 
executed by employees immediately employed by the 
subscriber, be hable to pay compensation under this act 
to those employees, the association shall pay to such 
employees any compensation which would be payable 
to them under this act if the independent or sub-contract- 
ors were subscribers. The association, however, shall 
be entitled to recover indemnity from any other person 
who would have been hable to such employees independ- 
ently of this section, and if the association has paid com?- 



§ 872 MASSACHtrsETTB 1911 Statute. 2309 

I>e]i8atio]i under the terms of this section, it may enforce 
in the name of the employee, or in its own name, and 
for the benefit of the association, the liability of such 
other person. This section shall not apply to any contract 
of an independent or sub-contractor which is merely 
ancillary and incidental to, and is no part of or process 
in, the trade or business carried on by the subscriber, 
nor to any case where the injury occurred elsewhere 
than on, in, or about the premises on which the contractor 
has undertaken to execute the work for the subscriber 
or which are under the control or management of the 
subscriber. 

Section 18. Every employer shall hereafter keep a record 
of all injuries J fatal or otherwise, received by his employees 
in the course of their employment. Within forty-eight 
hours, not counting Sundays and legal holidays, after 
the occurrence of an accident resulting in personal injury 
a report thereof shall he made in writing to the industrial 
accident board on blanks to be procured from the board 
for the purpose. 

Upon the termination of the disability of the injured 
employee or, if such disability extends beyond a period 
of sixty days, at the expiration of such period the em- 
ployer shall make a supplemental report on blanks to be 
procured from the board for that purpose. 

The said reports shall contain the name and nature 
of the business of the employer, the location of the es- 
tablishment, the name, age, sex and occupation of the 
injured employee, and shall state the date and hour of 
the accident, the nature and cause of the injury, and such 
other information as may be required by the board. 

Any employer who refuses or neglects to make the 
report required by this section shall be punished by a fine 
of not more than fifty dollars for each offence. 



2310 Masteb and Sebvakt. ^872 



Part IV. 

The Massachusetts Employees Insttbance Associa- 
tion. 

Section 1. The Maseachtisetts Employees Insurance 
Aaaocialion is hereby created a body corporate with the 
powers provided in this act and with all the general cor- 
I>orate powers incident thereto. 

Section 2. The governor shall appoint a board of 
directors of the association, consisting of fifteen members, 
who shall serve for a term of one year, or until their suc- 
cessors are elected by ballot by the subscribers at such 
time and for such term as the by-laws provide. 

Section 3. Until the first meeting of the subscribers the 
board of directors shall have and exercise all the powers 
of the subscribers, and may adopt by-laws not inconsist- 
ent with the provisions of this act, which shall be in effect 
tmtil amended or repealed by the subsmbers. 

Section 4. The board of directors shall annually choose 
by ballot a president, who shall be a member of the 
board, a secretary, a treasurer, and such other officers as 
the by-laws shall provide. 

Section 5. Seven or more of the directors shall con- 
stitute a quorum for the transaction of business. 

Vacancies in any office may be filled in such manner as 
the by-laws shall provide. 

Section 6. Any employer in the commonwealth may 
become a svhacriher. 

Section 7. The board of directors shall, within thirty 
days of the subscription of twenty-five employers, call the 
first meeting of the subscribers by a notice in writing 
mailed to each subscriber at his place of business not less 
than ten days before the date fixed for the meeting. 

Section 8. In any meeting of the subscribers each sub- 
scriber shall be entitled to one vote, and if a subscriber 
has five hundred employees to whom the association is 
bound to pay compensation he shall be entitled to two 
votes, and he shall be entitled to one additional vote for 
each additional five hundred employees to whom the 



§ 872 Massachusetts 1911 Statute. 2311 



association is bound to pay comi>en8ation, but no sub- 
scriber shall cast, by his own right or by the right of proxy, 
more than twenty votes. 

Section 9. No i>olicy shall be issued by the association 
until not less than one hundred employers have subscribed, 
who have not less than ten thousand employees to whom 
the association may be bound to pay comi>ensation. 

Section 10. No policy shall be issued until a Ust of the 
subscribers, with the number of employees of each, to- 
gether with such other information as the insurance com- 
missioner may require, shall have been filed at the insmv 
ance department, nor until the president and secretary 
of the association shall have certified under oath that 
every subscription in the list so filed is genuine and made 
with an agreement by every subscriber that he will take 
the policies subscribed for by him within thirty days of the 
granting of a license to the association by the insurance 
commissioner to issue policies. 

Section 11. If the number of subscribers falls below one 
himdred, or the number of employees to whom the asso- 
ciation may be bound to pay comi>en8ation falls below ten 
thousand, no further polidea shall he issried until other 
employers have subscribed who, together with existing 
subscribers, amount to not less than one hundred who have 
not less than ten thousand employees, said subscriptions to 
be subject to the provisions contained in the preceding 
section. 

Section 12. Upon the filing of the certificate provided 
for in the two preceding sections the insurance commis- 
sioner shall make such investigation as he may deem proper 
and, if his findings warrant it, grant a license to the 
association to issue policies. 

Section 13. The board of directors shall diatrilmte the 
subscribers into groups in accordance with the nature of the 
business and the degree of the risk of injury. 

Subscribers within each group shall annuaUy pay in 
cash^ or notes absolutely payable^ sixh premiums as may he 
required to pay the comi>ensation herein provided for the 
injuries which may occur in that year. 



2312 Mastbb Ain) Sbbvant. §872 

Section 14. The association may in its by-laws and 
policies fix the contingent mutual liability of the sub- 
scribers for the payment of losses and expenses not pro- 
vided for by its cash funds; but such contingent liability 
of a subscriber shall not be less than an amount equal to 
and in addition to the cash premium. 

Section 15. If the association is not i>ossessed of cash 
funds above its unearned premiums siifficient for the 
pasrment of incurred losses and expenses, it shall make an 
assessment for the amount needed to pay such losses and 
expenses upon the subscribers liable to assessment therefor 
in proportion to their several liability. 

Every subscriber shall pay his proportional part of any 
assessments which may be laid by the association, in 
accordance with law and his contract, on account of in- 
juries sustained and expenses incurred while he is a 
subscriber. 

Section 16. The board of directors may, from time to 
time, by vote fix and determine the amount to be paid as a 
dividend upon policies expiring during each year after 
retaining sufficient simis to pay all the compensation which 
may be payable on account of injuries sustained and 
expenses incmred. 

All premiimis, assessments, and dividends shall be fixed 
by and for groups as heretofore provided in accordance 
with the experience of each group, but all the funds of the 
association and the contingent liability of all the sub- 
scribers shall be available for the payment of any claim 
against the association. 

Section 17. Any proposed premium, assessment, divi- 
dend or distribution of subscribers shall be filed with the 
insurance department and shall not take effect until 
approved by the insurance commissioner after such in- 
vestigation as he may deem necessary. 

Section 18. The board of directors shall make and 
enforce reasonable rules and regulations for the preven- 
tion of injuries on the premises of subscribers, and for this 
purpose the inspectors of the association shall have free 
access to all such premises during regular working hours. 



§ 872 Massachusetts 1911 Statute. 2313 

Any subscriber or employee aggrieved by any such rule 
or regulation may petition the industrial accident board 
for a review, and it may afiSrm, amend, or annul the rule or 
regulation. 

Section 19. If any officer of the association shall falsely 
make oath to any certificate required to be filed with the 
insurance commissioner, he shall be guilty of perjury. 

Section 20. Every svbscriber ahalU as 80on as he secures 
a policy i give notice^ in writing or prirU^ to all persons under 
contract of hire with him that he has provided for pay- 
ment to injured employees by the association. 

Section 21. Every subscriber shall give notice in 
writing or print to every person with whom he is about to 
enter into a contract of hire that he has provided for pay- 
ment to injured employees by the association. 

Section 22. If a subscriber, who has complied with all 
the rules, regulations and demands of the association, is 
required by any judgment of a court of law to pay to an 
employee any damages on account of personal injury sus- 
tained by such employee during the period of subscription, 
the association shall pay to the svbscriber the fvll amourU of 
sitch judgment and the cost assessed therewith, if the sub- 
scriber shall have given the association notice in writing 
of the bringing of the action upon which the judgment was 
recovered and an opportunity to appear and defend the 
same. 

Section 23. The provisions of chapter five hundred 
and seventy-six of the acts of the year nineteen hundred 
and seven and of acts in amendment thereof shall apply 
to the association, so far as such provisions are pertinent 
and not in conflict with the provisions of this act, except 
that the corporate powers shall not expire because of 
failure to issue policies or make insurance. 

Section 24. The board of directors appointed by the 
governor under the provisions of Part IV, section two, may 
incur such expenses in the performance of its duties as 
shall be approved by the governor and council. Such 
expenses shall be paid from the treasury of the common- 
wealth and shall not exceed in amount the sum of fifteen 
thousand dollars. 



2314 Masteb Ain> Sebvant. $872 



Part V. 



MISCELLANEOUS PROVISIONS. 



Section 1. If an employee of a subscriber files any 
claim with or accepts any payment from the association 
on account of personal injury, or makes any agreement, or 
submits any question to arbitration, under this act, such 
action shall constitute a release to the svbscriber of all 
claims or demands at law, if any, arising from the injury. 

Section 2. The following words and phrases, as used 
in this act, shall, unless a different meaning is plainly 
required by the context, have the following meaning: 

** Employer^* shall include the \egsl representative of a 
deceased employer. 

^'Employee** shall include every person in the service 
of another under any contract of hire, express or implied, 
oral or written, except one whose employment is but 
casual, or is not in the usual course of the trade, business, 
profession or occupation of his employer. Any refer- 
ence to an employee who has been injured shall, when 
the employee is dead, also include his legal representa- 
tives, dependents and other i)ersons to whom compen- 
sation may be payable. 

** Dependents** shall mean members of the employee's 
family or next of kin who were wholly or partly dei>end*- 
ent upon the earnings of the employee for support at 
the time of the injury. 

*^ Average weekly wages** shall mean the earnings of the 
injured employee during the period of twelve calendar 
months immediately preceding the date of injury, di- 
vided by fifty-two ; but if the injured employee lost more 
than two weeks' time during such period then the earn- 
ings for the remainder of such twelve calendar months 
shall be divided by the number of weeks remaining after 
the time so lost has been deducted. Where, by reason 
of the shortness of the time during which the employee 
has been in the employment of his employer, or the na- 
ture or terms of the employment, it is impracticable to 



§ 873 New Hampsuibb 1911 Statute. 2315 



compute the average weekly wages, as above defined, 
regard may be had to the average weekly amount which, 
during the twelve months previous to the injury, was 
being earned by a person in the same grade employed at 
the same work by the same employer; or, if there is no 
person so employed, by a person in the same grade em- 
ployed in the same class of employment and in the same 
district. 

^* Association" shall mean the Massachusetts Employees 
Insurance Association. 

**Svb8crih€r** shall mean an employer who has become 
a member of the association by pasdng a year's premiimi 
in advance and receiving the receipt of the association 
therefor, provided that the association holds a license 
issued by the insurance commissioner as provided in 
Part IV, section twelve. 

Section 3. Any liability insurance company author^ 
ized to do Jmsineas within this commonwealth shall have 
the same right as the association to insure the liability 
to pay the compensation provided for by this act, and a 
policy holder of such liabihty company shall be regarded 
as a subscriber so far as applicable within the meaning 
of this act, and when any such company insures such pay- 
ment of compensation it shall be subject to all the regu- 
lations and obligations imposed upon the association. 

Section 4. Sections one hundred and thirty-six to 
one hundred and forty, inclusive, of chapter five hundred 
and fourteen of the acts of the year nineteen hundred 
and nine are hereby repealed. 

Section 5. The provisions of this act shall not apply 
to injuries sustained prior to the taking effect thereof. 

Section 6. Part IV of this act shall take effect on the 
first day of January ^ nineteen hundred and twelve; the re- 
mainder thereof shall take effect on the first day of July, 
nineteen hundred and twelve. [Approved July 28, 1911.] 

§ 873. New Hampshire statute (Laws 1911, c. 163, p. 181). 

An Act in Relation to Emplotsb's Liability and 
Wobkmen'b Compensation. 

Section 1. This act shall apply only to workmen enr 



2316 Masteb and Sebvant. ^873 

j gaged in manual or mechanical labor in the employments 

described in this section^ which, from the nature, condi- 

; tions or means of prosecution of such work, are danger^ 

ous to the life and limb of workmen engaged therein, 
because in them the risks of employment and the danger 
of injury caused by fellow-servants are great and diffi- 
cult to avoid, (a) The operation on steam or electric 
railroads of locomotives, engines, trains or cars, or the 
construction, alteration, maintenance or repair of steam 
railroad tracks or road beds over which such locomotives, 
engines, trains or cars are or are to be operated, (b) 
Work in any shop, mill, factory or other place on, in con- 
nection with or in proximity to any hoisting apparatus, 
or any machinery propelled or operated by steam or 
other mechanical power in which shop, mill, factory or 
other place five or more i)ersons are engaged in manual 
or mechanical labor, (c) The construction, oi>eration, 
alteration or repair of wires or lines of wires, cables, 
switchboards or apparatus, charged with electric cur- 
rents, (d) All work necessitating dangerous proximity 
to gun powder, blasting powder, dynamite or any other ex- 
plosives, where the same are used as instrumentalities 
of the industry, or to any steam boiler owned or operated 
by the employer, provided the injury is occasioned by 
the explosion of any such boiler or explosive, (e) Work 
in or about any quarry, mine, or foundry. As to each 
of said employments it is deemed necessary to establish 
a new system of compensation for accidents to work- 
men. 

Section 2. If, in the course of any of the employments 
above described, personal injury by accident arising out 
of and in the course of the emplo3rment is caused to any 
workman employed therein, in whole or in part, by fail- 
ure of the employer to comply with any statute, or with 
any order made under authority of law, or by l^e negli- 
gence of the employer or any of his or its officers, agents 
or employees, or by reason of any defect or insufficiency 
due to his, its or their negligence in the condition of his 



^ § 873 New Hampshibe 1911 Statute. 2317 



or its plant, ways, works, machinery, oars, engines, 
equipment, or appliances, then such employer shall be 
liable to such workman for all damages occasioned to 
him, or, in case of his death, to his personal representa- 
tives for all damages now recoverable under the provis- 
ions of chapter 191 of the Public Statutes. The work- 
man shall not be held to have assumed the risk of any 
injury due to any cause specified in this section; but 
there shall be no liability under this section for any in- 
jury to which it shall be made to appear by a preponder- 
ance of evidence that the negligence of the plaintiff con- 
tributed. The damage provided for by this section shall 
be recovered in an action on the case for negligence. 

Section 3. The provisions of section 2 of this act shall 
not apply to any employer who shaJl have filed with the 
commissioner of labor his declaration in writing that he 
accepts the provisions of this act as contained in the suc- 
ceeding sections, and shall have satisfied the conmiis- 
sioner of labor of his financial ability to comply with its 
provisions, or shall have filed with the commissioner 
of labor a bond, in such form and amoimt as the commis- 
sioner may prescribe, conditioned on the discharge by 
such employer of all liability incurred imder this act. 
Such bond shall be enforced by the commissioner of labor 
for the benefit of all persons to whom such employer 
may become liable under this act in the same manner 
as probate bonds are enforced. The commissioner may, 
from time to time, order the filing of new bonds, when in 
his judgment such bonds are necessary; and after thirty 
days from the communication of such order to any em- 
ployer, such employer shall be subject to the provisions 
of section 2 of this act until such order has been complied 
with. The employer may at any time revoke his accept- 
ance of the provisions of the succeeding sections of this 
act by filing with the commissioner of labor a declaration 
to that effect, and by posting copies of such declaration 
in conspicuous places about the place where his work- 
men are employed. Any person aggrieved by any deds- 
ion of the commissioner under this section may apply 



2318 Masteb akd Sebyant. ^873 



by petition to any justice of the superior court for a re- 
view of such decision and said justice on notice and 
hearing shall make such order affirming, reversing or 
modifying such decision as justice may require; and 
such order shall be final. Such employer shall be liable 
to all workmen engaged in any of the employments 
6i)ecified in section 1, for any injury arising out of and 
in the course of their employment, in the manner pro- 
vided in the following sections of this act. Provided^ 
that the employer shall not be liable in resi)ect of any 
injury which does not disable the workman for a i>eriod 
of at least two weeks from earning full wages at the work 
at which he was employed, and, provided^ that the emr 
ployer shall not he liable in respect of any injury to the work- 
man which is caused in whole or in part by the intoxicaliony 
violaiion of law, or serious wilful misconduct of the work-- 
man. Provided, further, that the employer shall at the 
election of the workman, or his personal representative, 
be liable under the provisions of section 2 of this act 
for all injury caused in whole or in part by wilful failure 
of the employer to comply with any statute, or with any 
order made under authority of law. 

Section 4. The right of action for damages caused by 
any such injury, at common law, or under any statute 
in force on January one, nineteen hundred and eleven, 
shall not be affected by this act, hut in case the injured 
workman, or in event of his death his executor or adminis- 
trator, shall avail himself of this act, either hy accepting 
»any compensation hereunder, hy giving the notice hereinr 
after prescrihed, or hy beginning proceedings therefor in 
^ny manner on account of any such injury, he shaU he barred 
from recovery in every action at common law or under any other 
statute on account of the same injury. In case of such 
injury the workman, or in the event of his death his 
executor or administrator, shall commence any action 
at common law or under any statute other than this 
act against the employer therefor, he shall be barred 
irom all benefit of this act in regard thereto. 



§ 873 New Hampshibb 1911 Statute. 2319 

Section 5. No proceedings for comi)ensation under 
this act shall be maintained unless notice of the accident 
as hereinafter provided has been given to the employer 
as soon as practicable after the happening thereof and 
before the workman has volimtarily left the employment 
in which lie was injured and during such disability^ and 
unless claim for compensation has been made within six 
months from the occurrence of the accident, or in case 
of the death of the workman, or in the event of his phys- 
ical or mental incapacity! within six months after such 
death or the removal of such physical or mental inca- 
pacity, or in the event that weekly payments have been 
made imder this article, within six months after such 
payments have ceased, but no want or defect or inaccu- 
racy of a notice shall be a bar to the maintenance of 
proceedings unless the employer proves that he is pre- 
judiced by such want, defect or inaccuracy. Notice 
of the accident shall apprise the employer of the claim 
for compensation under this article, and shall state the 
name and address of the workman injured, and the date 
and place of the accident. The notice may be served 
personally or by sending it by mail in a registered letter 
addressed to the employer at his last known residence 
or place of business. 

Section 6. (1) The amount of compensation shall be, 
in case death results from injury: (a) If the workman 
leaves any widow, children, or parents, resident of this 
state, at the time of his death, then wholly dependent 
on his earnings, a sum to compensate them for loss, 
equal to one hundred and fifty times the average weekly 
earnings of such workman when at work on full time 
during the preceding year during which he shall have 
been in the employ of the same employer, or if he shall 
have been in the employment of the same employer for 
less than a year then one himdred and fifty times 
his average weekly earnings on full idme for such less 
period, but in no event shall such sum exceed three 
thousand dollars. Any weekly payments made under 
this act shall be deducted from the sum so fixed, (b) 

3 M. ft 8.-22 



2320 Masteb Am> Sebvakt. ^873 



If such widow, children or parents at the time of his 
death are in part only dei)endent upon his earnings, 
such proportion of the benefits provided for those wholly 
dependent as the amount of tiie wage contributed by 
the decease to such partial dependents at the time of 
injury bore to the total wage of the deceased, (c) If 
he leaves no such dependents, the reasonable exi>enses 
of his medical attendance and burial, not exceeding one 
himdred dollars. Whatever sum may be determined to 
be payable imder this act in case of death of the injured 
workman shall be paid to his legal representative for 
the benefit of such dependents, or if he leaves no such 
dependents, for the benefit of the persons to whom the 
expenses of medical attendance and burial are due. 

(2) Where total or partial incapacity for work at any 
gainful employment results to the workman from the 
injury, a weekly payment commencing at the end of the 
second week after the injury and continuing during 
such incapacity, subject as herein provided, not exceed- 
ing fifty per centum of his average weekly earning when 
at work on full time during the preceding year during 
which he shall have been in the employment of the same 
employer, or if he shall have been in the employment of 
the same employer for less than a year, then a weekly 
payment of not exceeding one-half of the average weekly 
earnings on full time for such less period. In fixing 
the amoimt of the weekly payment, regard shall be had 
to the difference between the amoimt of the average 
earnings of the workman before the accident and the 
average amoimt he is able to earn thereafter as wages 
in the same employment or otherwise. In fixing the 
amoimt of the weekly payment, regard shall be had to 
any payment, allowance or benefit which the workman 
may have received from the employer during the period 
of his incapacity, and in the case of partial incapacity 
the weekly payment shall in no case exceed the differ- 
ence between the amount of the average weekly earn- 
ings of the workman before the accident, and the average 
weekly amount which he is earning or is able to earn in 



§ 873 New Hampshibb 1911 Statute. 2321 

the same employment or otherwise after the accident, 
but shall amoimt to one-half of such difference. In no 
event shall any compensation paid imder this act exceed 
the damage suffered, nor shall any weekly payment 
payable imder this act in any event exceed ten dollars 
a week or extend over more than three hundred weeks 
from the date of the accident. Such payment shall 
continue for such period of three hundred weeks pro- 
vided total or partial disability continue during such 
period. No such payment shall be due or payable for 
any time prior to the giving of the notice required by 
section five of this act. 

Section 7. Any workman entitled to receive weekly 
payments under this act is required, if requested by the 
employer, to submit himself for examination by a duly 
qualified medical practitioner or surgeon provided and 
paid for by the employer, at a time and place reasonably 
convenient for the workman, within two weeks after 
the injury, and thereafter at intervals not oftener than 
once a week. If the workman refuses to submit to such 
examination, or obstructs the same, his right to weekly 
payments shall be suspended until such examination 
has taken place, and no comi)ensation shall be payable 
during or for account of such period. 

Section 8. In case an injured workman shall he mevr 
tally incompetent at the time when any right or privi- 
lege accrues to him imder this act, the guardian of the 
incompetent appointed pursuant to law may, on behalf 
of such incomi)etent, claim and exercise any such right 
or privilege with the same force and effect as if the work- 
man himself had been competent and had claimed or 
exercised any such right or privilege, and no limitation 
of time in this act provided for shall run so long as said 
incompetent workman has no guardian. 

Section 9. Any question as to compensation which 
may arise under this act shall be determined by agree- 
ment or by an action at equity as hereinafter provided. 
In case the employer fail to make compensation as herein 
provided^ the injured workman, or his guardian, if such 



2322 Mastbb and SBBVAirr. §873 



be appointed, or his executor or administrator, may then 
bring an action to recover compensation under this act in 
any court having jurisdiction of an action for recovery of 
damages for negligence for the same injury between same 
parties. Such action shall be by petition in equity, which 
may be made returnable at the appropriate term of the 
sui)erior court or may be filed in the office of the clerk 
of the superior court and presented in term time or vaca- 
tion of any justice of said court, who on reasonable no- 
tice shall hear the parties and render judgment thereon. 
The judgment in such action if in favor of the plaintiff 
shall be for a lump sum equal to the amount of payments 
then due and prospectively due under this act. In such 
action by an executor or administrator the judgment 
may provide the proportions of the award or the costs 
to be distributed to or between the several dependents. 
If such determination is not made it shall be determined 
by the probate court in which such executor or adminis- 
trator is appointed, in accordance with this act, on pe- 
tition of any party interested, on such notice as such 
court may direct. Any employer who has declared his 
intention to act under the compensation features of this 
act shall also have the right to apply by similar pro- 
ceedings to the sui)erior court or to any justice thereof 
for a determination of the amount of the weekly pay- 
ments to be paid the injured workman, or of a 
limip sum to be paid the injured workman in Ueu of 
such weekly payments; and either such employer or 
workman may apply to said superior court or to any jus- 
tice thereof in similar proceeding for the determination 
of any other question that may arise under the compen- 
sation feature of this act; and said court or justice, after 
reasonable notice and hearing, may make such order as 
to the matter in dispute and taxable costs as justice 
may require. 

Section 10. Any person entitled to weekly payments 
imder this act against any employer shall have the same 
preferential claim therefor against the assets of the em- 
ployer as is allowed by law for a claim by such person 



§ 874 New Jersey 1911 Statute. 2323 



against such employer for unpaid wages of personal 
services. Weekly payments due under this act shall 
not be cLsaignable or subject to Uvy^ execution, attach- 
ment or satisfaction of debts. Any right to receive cornr 
penaaiion under this act shall be extinguished by the death 
of the person entitled thereto. 

Section 11. No daim of any aUomey-atrlaw for any 
contingent interest in any recovery imder this act for 
services in securing such recovery or for disbursements 
shall be an enforceable lien on such recovery, unless the 
accoimt of the^ same be approved in writing by a justice 
of the superior court, or, in case the same be tried in any 
coiurt, by the justice presiding at such trial. 

Section 12. Every employer subject to the provisions 
of this act shall from time to time make to the commis- 
sioner of labor such returns as to its operation as said 
conmiissioner may require upon blanks to be furnished 
by said conmiissioner. Any employer failing to make 
such returns when required by said conmdssioner shall, 
until such returns are made, be subject to the provis- 
ions of section 2 of this act. 

Section 13. This act shall take effect January first, 
nineteen hundred twelve. [Approved April 15, 1911.] 

§ 874. New Jersey statute (Laws 19 ll, c. 95, p. 134). 

An Act prescribing the liability of an employer to make 
compensation for injuries received by an employee in 
the course of employments, establishing an elective 
schedule of compensation, and regulating procedmre for 
the determination of liability and compensation there- 
under. 

Section I. Compensation by action at law. (1) 
When i)ersonal injury is caused to an employee by acci- 
dent arising out of and in the course of his employment, 
of which the actual or lawfully imputed negligence of 
the employer is the naiural and proximate cause, he shall 
receive compensation therefor from his employer, pro- 
viding the employee was himself not wilfully negligent at 
the time of receiving such injury, and the question of 



2324 Master and Sbbvakt. ^874 

whether the employee was wilfully negligent shall be 
one of fact to be submitted to the jury, subject to the 
usual superintending powers of a court to set aside a 
verdict rendered contrary to the evidence. 

2. The right to compensation as provided by Section I. 
of this act shaU not he defeated upon the ground that the 
injury was caused in any degree by the negligence of a 
fellow^mployee; or that the injured employee assumed 
the risks inherent in or incidental to arising out of his 
employment or arising from the failiure of the employer 
to provide and maintain safe premises and suitable 
appliances; which said groimds of defense are hereby 
abolished. 

3. If an employer enters into a contract, written or 
verbal, with an independent contractor to do part of such 
employer's work, or if such contractor enters into a con- 
tract, written or verbal, with a subcontractor to do all 
or any part of such work comprised in such contract- 
or's contract with the employer, such contract or sub- 
contract shall not bar the liability of the employer im- 
der this act for injury caused to an employee of such 
contractor or subcontractor by any defect in the con- 
dition of the ways, works, machinery or plant if the 
defect arose or had not been discovered and remedied 
through the negligence of the employer or some one 
entrusted by him with the duty of seeing that they 
were in proper condition. This paragraph shall apply 
only to actions arising under section one. 

4. The provisions of paragraph one, two and three 
shall apply to any claim for the death of an employee 
arising imder an act entitled ''An act to provide for the 
recovery of damages in cases where the death of a per- 
son is caused by wrongful act, neglect or default", ap- 
proved March third, eighteen hundred and forty-eight, 
and the amendments thereof and supplements thereto. 

5. In all actions at law brought pursuant to Section I. 
of this act, the burden of proof to establish wilful negli- 
gent in the injured employee shall be upon the defend- 
ant. 



§ 874 New Jbbsby 1911 Statute. 2325 



6. No olaim for legal services or disbursements per- 
taining to any demand made or suit brought imder the 
provisions of this act shall be an enforceable hen against 
the amount paid as compensation, unless the same be 
approved in writing by the judge or justice presiding 
at the trial, or in case of settlement without trial, by the 
judge of the circuit court of the district in which such 
issue arose; provided, that if notice in writing be given 
the defendant of such claim for legal services or disburse- 
ments, the same shall be a hen against the amount paid 
as compensation, subject to determination of the amoimt 
and approval hereinbefore provided. 

Section II. Elective Compensation. 

7. When employer and employee shall by agreement 
either express or implied^ as hereinafter provided, accept 
the provisions of Section II. of this act, compensation 
for i)ersonal injuries to or for the death of such employee 
by accident arising out of and in the course of his em- 
ployment shall be made by the employer without re- 
gard, to the negligence of the employer , according to the 
schedule contained in paragraph eleven, in all cases 
except when the injury or death is intentionally self-in- 
flictedj or when intoxication is the natural and proximate 
cause of injury, and the burden of proof of such fact shall 
be upon the employer. 

8. Such agreement shall be a surrender by the parties 
thereto of their rights to any other method, form or 
amount of compensation or determination thereof than 
as provided in Section II. of this act, and an acceptance 
of all the provisions of Section II. of this act, and shall 
bind the employee himself and for compensation for his 
death shall bind his personal representatives, his widow 
and next of kin, as well as the employer and those con- 
ducting his business during bankruptcy or insolvency. 

9. Every contract of hiring made subsequent to the 
time provided for this act to take effect shaU be pre- 
sumed to have been made with reference to the provisions 
of Section II. of this act, and unless there be as a part of 
such contract an express statement in writing, prior to 



2326 Masteb and Sbbvant. ^874 



any accident, either in the contract itself or by written 
notice from either party to the other, that the provisions 
of Section II. of this act are not intended to apply, then 
it shall be presumed that the parties have accepted the 
provisions of Section II. of this act and have agreed to 
be bound thereby. In the employment of minors, Sec- 
tion II. shall be presumed to apply unless the notice 
be given by or to the parent or guardian of the minor. 

10. The contract for the operation of the provisions 
of Section II. of this act may be terminated by either 
party upon sixty days' notice in writing prior to any 
accident. 

11. Following is the schedule of compensation: 

(a) For injury producing temporary disability, fifty 
per centum of the wages received at tiie time of injury 
subject to a maximum comi)ensation of ten dollars per 
week and a minimum of five dollars per week; provided, 
that if at the time of injury the employee receives wages 
of less than five dollars per week, then he shall receive 
the full amount of such wages per week. This compen- 
sation shall be paid during the period of such disabilityt 
not, however, beyond three hundred weeks. 

(b) For disability total in character and permanent 
in quality, fifty per centum of the wages received at the 
time of the injury, subject to a maximum compensation 
of ten dollars per week and a minimum of five dollars 
per week; provided, that if at the time of injury the em- 
ployee receives wages of less than five dollars per week, 
then he shall receive the full amount of wages per week. 
This compensation shall be paid during the period of 
such disability, not, however, beyond four hundred 
weeks. 

(c) For disability partial in character but permanent 
in quality, the compensation shall be based ui)on the 
extent of such disability. In cases included by the fol- 
lowing schedule the compensation shall be that named in 
the schedule, to wit: For the loss of a thumb, fifty per 
centum of daily wages during sixty weeks. For the loss 
of a first finger, commonly called index finger, fifty per 



§ 874 New Jbbsby 1911 Statute. 2327 

centum of daily wages during thirty-five weeks. For 
the loss of a second finger, fifty per centum of daily 
wages during thirty weeks. For the loss of a third finger, 
fifty per centum of daily wages during twenty weeks. 
For the loss of a fomrth finger, commonly called little 
finger, fifty per centum of daily wages during fifteen 
weeks. The loss of the first phalange of the thumb, or 
of any finger shall be considered to be equal to the loss 
of one-half of such thumb, or finger, and compensation 
shall be one-half the amounts above specified. The 
loss of more than one phalange shall be considered as 
the loss of the entire finger or thumb; provided, how- 
ever, that in no case shall the amoimt received for more 
than one finger exceed the amount provided in this sched- 
ule for the loss of a hand. For the loss of a great toe, 
fifty per centum of daily wages during thirty weeks. 
For the loss of one of the toes other than the great toe, 
fifty per centum of daily wages during ten weeks. For 
the loss of a first phalange of any toe shall be consid- 
ered to be equal to the loss of one-half of such toe, and 
compensation shall be one-half of the amoimt above 
specified. The loss of more than one phalange shall be 
considered as the loss of the entire toe. For the loss of 
a hand, fifty per centum of daily wages during one him- 
dred and fifty weeks. For the loss of an arm, fifty per- 
centum of daily wages during two hundred weeks. For 
the loss of a foot, fifty per centum of daily wages during 
one hundred and twenty-five weeks. For the loss of a 
leg, fifty per centum of daily wages during one himdred 
and seventy-five weeks. For the loss of an eye, fifty 
per centum of daily wages during one himdred weeks. 
The loss of both hands, or both arms, or both feet, or 
both legs, or both eyes, or of any two thereof, shall con- 
stitute total and permanent disability, to be compen- 
sated according to the provisions of clause (b). 

In all other cases in this class the compensation shall 
bear such relation to the amounts stated in the above 
schedule as the disabilities bear to those produced by 
the injuries named in the schedule. Should the em- 



2328 Master ahd Sebyaht. ^874 



ployer and employee be unable to agree upon the amount 
of compensation to be paid in cases not covered by the 
schedule, the amount of comi)ensation shall be settled 
according to the provisions of paragraph twenty hereof. 
The amounts specified in the clause are all subject to 
the same limitations as to maTimum and mmiTrmm as 
are stated in clause (a). 

12. In case of death compensation shall be computed 
but not distributed on the following basis: (1) Actual 
dependents. If orphan or orphans, a mmiTmiTn of 
twenty-five per centum of wages of deceased, with ten 
per centum additional for each orphan in excess of two, 
with a maxiinuin of sixty per centunL If widow alone, 
twenty-five per centum of wages. If widow and one 
child, forty per centum of wages. If widow and two 
children, forty-five per centum of wages. If widow and 
three children, fifty per centum of wages. If widow and 
four children, fifty-five per centum of wages. If widow 
and five children or more, sixty -per centum of wages. 
If widow and father or mother, fifty per centum of 
wages. If grandparents, grandchildren, or minor, or 
incapacitated brothers or sisters, twenty-five per centum 
of wages. Compensation in case of death shall be com- 
puted on the basis of the foregoing schedule, but shall 
he distributed according to the laws of this State providing 
for the distribution of the personal property of an intes- 
tale decedent, unless decedent has in fact left a wiU. 

(2) No dependents. Expenses of last sickness and 
burial not exceeding two himdred dollars. In comput- 
ing compensation to orphans or other children, only 
those imder sixteen years of age shall be included, and 
only during the i)eriod in which they are under that age, 
at which time payment on account of such child shall 
'Cease. The compensation in case of death shall be sub- 
ject to a maximum compensation of ten dollars per 
week and a minimum of five dollars per week; provided, 
that if at the time of injury the employee receives wages 
of less than five dollars per week, then the compensation 
shall be the full amount of such wages i>er week. This 



§ 874 New Jbbsby 1911 Statute. 2329 

compensation shall be paid during three hundred weeks. 
Compensation under this schedule shall not apply to 
alien dependents not residents of the United States. 

13. No compensation shall be allowed for the first two 
weeks after injury received, except as provided by par- 
agraph fourteen, nor in any case unless the employer 
has actual knowledge of the injury or is notified thereof 
within the period specified in paragraph fifteen. 

14. During the first two weeks after the injury the 
employer shall furnish reasonable medical and hospital 
services and medicines, as and when needed, not to ex- 
ceed one himdred dollars in value, unless the employee 
refuses to allow them to be furnished by the employer. 

15. Unless the employer shall have actual knowledge 
of the occurrence of the injury, or unless the employee, 
or some one on his behalf or some of the dependents, 
or some one on their behalf, shall give notice thereof to 
the employer within fourteen days of the occurrence of the 
injury^ then no comi)ensation shall be due until such 
notice is given or knowledge obtained. If the notice is 
given, or the knowledge obtained within thirty days 
from the occurrence of the injury, no want, failure, or 
inaccuracy of a notice shall be a bar to obtaining com- 
pensation, unless the employer shall show that he was 
prejudiced by such want, defect or inaccuracy, and then 
only to the extent of such prejudice. If the notice is 
given, or the knowledge obtained within ninety days, 
and if the employee, or other beneficiary shall show that 
his failure to give prior notice was due to his mistake, 
inadvertence, ignorance of fact or law, or inabihty, or 
to the fraud, misrepresentation or deceit of another 
person, or to any other reasonable cause or excuse, then 
compensation may be allowed, unless, and then to the 
extent only that the employer shall show that he was 
prejudiced by failure to receive such notice. Unless 
knowledge be obtained or notice given, within ninety 
days after the occurrence of the injury no compensation 
shall be allowed. 



2330 Masteb akd Sebvant. ^874 



16. The notice referred to may be served personally 
upon the employer, or upon any agent of the employer 
upon whom a summons may be served in a civil action 
or by sending it through the mail to the employer at 
the last known residence or business place thereof within 
the State, and shall be substantially in the following 
form: 

To (name of employer): 

You are hereby notified that a i)ersonal injury was 
received by (name of employee injured), who was in 
your employ at (place) while engaged as (nature of em- 
ployment, on or about the ( ) day of ( ), 

nineteen hundred and ( ), and that compensation 

will be claimed therefor. 

(Signed), ( ). 

but no variation from this form shall be material if the 
notice is suf&cient to advise the employer that a certain 
employee, by name, received an injury in the course of 
his employment on or about a specified time, at or near 
a certain place. Notice served at the office of, or on the 
person who was the employee's immediate superior, 
shall be a compliance with this act. 

17. After an injury, the employee, if so requested by 
his employer, must submit himself for examination at 
some reasonable time and place within the State, and as 
often as may be reasonably requested, to a physician 
or physicians authorized to practice imder the laws of 
this State. If the employee requests, he shall be entitled 
to have a physician or physicians of his own selection 
present to participate in such examination. The refusal 
of the employee to submit to such examination shall 
deprive him of the right to compensation during the con- 
tinuance of such refusal. When a right to compensation 
is thus suspended no compensation shall be payable in 
respect of the period of suspension. 

18. In case of a dispute over^ or failure to agree upon^ 
a claim for compensation between employer and employee, 
or the dependents of the employee, either party may sub- 
mit the claim, both as to questions of fact, the nature and 



§ 874 New Jbbsby 1911 Statutb. 2331 



effect of the injuries, and the amotint of compensation 
therefor according to the schedule herein provided, to 
the judge of the Court of Common Pleas of such county 
as would have jurisdiction in a civil case, or where there 
is more than one judge of said court, then to either or 
any of said judges of such court, which judge is hereby 
authorized to hear and determine such disputes in a 
summary manner, and his decision as to all questions of 
fact shaU he conclusive and binding. 

19. In case of deaths where no executor or administra- 
tor is qualified, the said judge shall, by order, direct 
payment to be made to such persons as would be ap- 
pointed administrator of the estate of such decedent 
upon Uke terms as to bond for the proper application of 
compensation payments as are required of administra- 
tors. 

20. Procedmre in case of dispute shall be as follows: 
Either party may present a petition to said judge set- 
ting forth tiie names and residences of the parties and 
the facts relating to employment at the time of injury, 
the injury in its extent and character, the amount of 
wages received at the time of injury, the knowledge of 
the employer or notice of the occurrence of said injury, 
and such other facts as may be necessary and proper 
for the information of the said judge, and shall state the 
matter or matters in dispute and the contention of the 
I>etitioner with reference thereto. This i)etition shall 
be verified by the oath or affirmation of the i)etitioner. 

Upon the presentation of such petition the same shall 
be filed with the clerk of the Court of Common Pleas, 
and the judge shall fix a time and place for the hearing 
thereof, not less than three weeks after the date of the 
filing of said petition. A copy of said i)etition shall be 
served as summons in a civil action, and may be served 
within four days thereafter upon the adverse party. 
Within seven days after the service of such notice the 
adverse party shall file an answer to said petition^ which 
shall admit or deny the substantial averments of the 
petition, and shall state the contention of the defendant 



2332 Masteb and Sebvakt. ^874 



with reference to the matters in dispute as disclosed by 
the petition. The answer shall be verified in Uke manner 
as required for a petition. 

At the time fixed for hearing or any adjournment there- 
of the said judge shall hear such witnesses as may be 
presented by each party, and in a summary manner 
decide the merits of the controversy. This determina- 
tion shall be filed in writing with the clerk of the Common 
Pleas Court, and judgment shall he entered thereon in the 
same manner as in causes tried in the Court of Common 
Pleas, and shall contain a statement of facts as deter- 
mined by said judge. Subsequent proceedings thereon 
shall only be for the recovery of moneys thereby determined 
to be due, provided that nothing herein contained shall 
be construed as limiting the jurisdiction of the Supreme 
Court to review questions of law by certiorari. Costs 
may be awarded by said judge in his discretion, and 
when so warded the same costs shall be allowed, taxed 
and collected as are allowed, taxed and collected for the 
like services in the Common Pleas Court. 

21. The amoimts payable periodically as compensa- 
tion may be commuted to one or more lump sum pay- 
ments by the judge of the Court of Common Pleas hav- 
ing jurisdiction as set forth in the preceding paragraph, 
upon the application of either party, in his discretion, 
provided the same be in the interest of justice. Unless 
so approved, no compensation payments shall be com- 
muted. 

An agreement or award of compensation may he modir 
fied at any time by a subsequent agreement, or at any 
time after one year from the time when the same became 
operative it may be reviewed upon the appUcation of 
either party on the groimd that the incapacity of the 
injured employee has subsequently increased or dimin- 
ished. In such case the provisions of paragraph seven- 
teen with reference to medical examination shall apply. 

22. The right of compensation granted by this act 
shall have the same preference against the assets of the 
employer as is now or may be hereafter allowed by. law 



§ 874 New Jebsey 1911 Statute. 2333 



for a claim for unpaid wages for labor. Claiins or pay- 
ments due imder this act shall not be assignable, and shall 
be exempt from all claims of creditors and from levy, 
execution or attachment. 

Section III. General Provisions. 

23. For the purposes of this act, wilfvl negligence shall 
consist of (1) deliberate act or deliberate failure to act, 
or (2) such conduct as evidences reckless indifference 
to safety, or (3) intoxication, operating as the proximate 
cause of injury. 

Wherever in this act the singular is used the plural 
shall be included; where the masculine gender is used, 
the feminine and neuter shall be included. 

Employer is declared to be synonymous with master 
and includes natural persons, partnerships and corpora- 
tions; employee is synonymous with servant and includes 
all natural persons who perform service for another for 
financial considerations, exclusive of casual employ- 
ments. 

Amputation between the elbow and the wrist shall 
be considered as the equivalent of the loss of a hand, 
and amputation between the knee and the ankle shall 
be considered as the equivalent of the loss of a foot. 

24. In case for any reason any paragraph or any pro- 
vision of this act shall he questioned in any court and shall 
be held to he unconstitutional or invalid, the same shall 
not be held to affect any other paragraph or provision 
of this act, except that Sections I. and II. are hereby 
declared to be inseparable, and if either section be de- 
clared void or inoperative in an essential part, so that 
the whole of such section must fall, the other section shall 
fall with it and not stand alone. Section I. of this act 
shall not apply in cases where Section II. becomes op- 
erative in accordance with the provisions thereof, but 
shall apply in all other cases, and in such cases shall be 
in extension of the common law. 

25. Every right of action for negligence, or to recover 
damages for injuries resulting in death, existing before 
this act shall take effect, is continued, and nothing in 



2334 Mastbb and Servant. ^874 

this act contained shall be construed as affecting any such 
right of action, nor shall the failure to give the notice pro- 
vided for in Section II., paragraph fifteen of this act, be 
a bar to the maintenance of a suit upon any right of ac- 
tion existing before this act shall take effect. 

26. All acts or parts of acts inconsistent with the pro- 
visions of this act are hereby repealed. 

27. This act shall take effect on the fourth day of 
July next succeeding its passage and approval. [Aj)- 
proved April 4, 1911.] 

Chapter 368, p. 763, Laws N. J., 1911. 

A supplement to an act entitled ''An act prescribing 
the liability of an employer to make compensation for 
injuries received by an employee in the course of em- 
ployment, establishing an elective schedule of com- 
I>ensation, and regulating procedure for the determina- 
tion of liability and compensation thereunder", approved 
April 4, one thousand nine hundred and eleven. Be it 
enacted by the Senate and General Assembly of the State 
of New Jersey: 1. Every contract of hiring, verbal, 
written or implied from circumstances, now in opera- 
tion or made or impUed prior to the time limited for the 
act to which this act is a supplement to take effect shall, 
after this act takes effect, be presimied to continue sub- 
ject to the provisions of section two of the act to which 
this act is a supplement, imless either party shall, prior 
to accident, in writing, notify the other party to such con- 
tract that the provisions of section two of the act to which * 
this act is a supplement are not intended to apply. 

2. This act shall take effect on the fourth day of 
Jidy next succeeding its passage and approval. [Ap- 
proved May 2, 1911.] 

Chapter 241, p. 520, Laws N. J., 1911. 

An Act creating the employers' liability commission 
and prescribing its powers and duties and requiring 
reports to be made by the employers of labor upon the 
operation of the employers' liability law for the informa- 
tion of said conunission. Be it enacted by the Senate 



§ 874 New Jbbsbt 1911 Statute. 2335 

and General Assembly of the State of New Jersey: 1. 
The Qovemor is hereby authorized to appoint six citi- 
zens of this State as an employers' liability conmiission, 
who shall hold their offices for the term of two years 
and until their successors are appointed and qualified. 
They shall receive no comi>ensation for their services, 
but their actual traveling expenses incurred upon the 
business of the commission shall be paid by the State 
Treasurer, upon warrants approved by the president of 
the said commission. The commission shall have power 
to choose one of their number as president and one of 
their nimiber as secretary, and shall have power to aj)- 
point a clerk. The expenses of the commission, the 
salary of the secretary and of the derk shall be paid from 
appropriations made for that purpose in any annual or 
supplemental appropriation bill. It shall be the duty of 
the commission to observe in detaQ, so far as possible, 
the operations throughout the State of the recent act 
of the Legislature conmionly known as ''The Employ- 
ers' Liability Act", entitled ''An act prescribing the lia- 
bility of an employer to make compensation for injuries 
received by an employee in the course of employment, 
establishing an elective schedide of compensation and 
r^n^ting procedure for the determination of liability 
and compensation thereunder," approved April fourth, 
one thousand nine hundred and eleven. 

2. From and after the fourth day of July next, when 
the said law becomes operative, every employer of labor 
within the State of New Jersey, shaU report to said comr 
mission, upon the occurrence of any injury to any of his 
employees, the name and nationality of the employee 
so injured, the nature and extent of such injury, whether 
said injured employee and the employer at the time of 
said injury were subject to the provisions of section one 
or section two of said act, and the amount of compensa- 
tion when determined, together with such other facts 
relating to such injury as the commission may request. 
The information thus received shall be tabulated, from 
time to time, and the records thereof shall be the pri- 

8 M. & &— 28 



2336 Master and Sebyakt. ^875 



vate records of the commissioii; they shall not be made 
public or open to inspection unless in the opinion of the 
commission the public interests shall require it, and they 
shall not be used as evidence against any employer in 
any suit or action at law brought by any employee for 
the recovery of damages. The commission shall hold 
meetings, from time to time, as they may deem neces- 
sary, and shall present to each session of the Legislature 
a report showing the operations under the said act during 
the preceding year, together with any suggestions or 
recommendations which they may deem necessary or 
proper for the improvement of the said act, in order to 
accomplish with the greatest efficiency the purposes of 
the said act. 

3. This act shall take effect immediately. [Approved 
April 27, 1911.] 

§ 875. Ohio statute (Laws 191 1» c. 127.) 

An Act to create a state insurance fund for the benefit 
of injured, and the dependents of killed employees, and 
to provide for the administration of such fund by a state 
liability board of awards. 

Be it enacted by the General Assembly of the State of 
Ohio: 

Section 1. There is hereby created a state liability 
board of awards, to be composed of three members, 
not more than two of whom shall belong to the same po- 
litical party, to be appointed by the governor, within 
thirty days after the passage of this act, and one of which 
members shall be appointed for the term of two years, 
one member for four years and one member for six 
years, and thereafter as their terms expire the governor 
shall appoint one member for the term of six years. 
Vacancies shall be filled by appointment by the gov- 
ernor for the unexpired term. 

Section 2. Each member of the board shall devote 
his entire time to the duties of his office and shall not 
hold any position of trust or profit or engage in any 
occupation or business interfering or inconsistent with 



§ 875 Ohio 1911 Statute. 2337 

his duty as such member, or serve on or under any 
committee of any political party. 

Section 3. Each member of the board shall receive 
an annual salary of five thousand dollars, payable in 
the same manner as salaries of state officers are paid. 

Section 4. The board shall be in continuous session 
and open for the transaction of business during all the 
business hours of each and every day, excepting Sun- 
days and legal holidays. All sessions shall be open to 
the public, and shall stand and be adjourned without 
further notice thereof on its records. All proceedings 
of the board shall be shown on its records of proceed- 
ings, which shall be a public record, and shall contain 
a record of each case considered, and the award made 
with respect thereto, and all voting shall be had by the 
calling of each member's name by the secretary and each 
vote shall be recorded as cast. 

Section 5. A majority of the board shall constitute 
a quorum for the transaction of business, and a vacancy 
shall not impair the right of the remaining members 
to exercise all the powers of the full board so long as a 
majority remains. Any investigations, inquiry or hear- 
ing which the board is authorized to hold, ^ or undertake, 
may be held or imdertaken by or before any one mem- 
ber of the board. All investigations, inquiries, hear- 
ings, and decisions of the board, and every order made 
by a member thereof, when approved and confirmed 
by a majority of the members, and so shown on its rec- 
ord of proceedings, shall be deemed to be the order of 
the board. 

Section 6. The board shall keep and maintain its 
office in the City of Colimibus, and shall provide a suit- 
able room or rooms, necessary office furniture, supplies, 
books, periodicals and maps. All necessary expenses 
shall be audited and paid out of the state treasury. The 
board may hold sessions at any place within the state. 

Section 7. The board may employ a secretary, act- 
uary, accountants, inspectors, examiners, experts, clerks, 
stenographers and other assistants, and fix their compen- 



2338 Mabtsb akb Sebyakt. ^875 



sation. Such employments and compensation shall be 
first approved by the governor, and shall be paid out of 
the state treasury. The members of the board, actu- 
aries, accountants, inspectors, examiners, experts, clerks, 
stenographers and other assistants that may be employed 
shall be entitled to receive from the state treasury their 
actual and necessary expenses while traveling in the busi- 
ness of the board. Such expenses shall be itemized and 
sworn to by the person who incurred the expense, and 
allowed by the board. 

Section 8. The board shall adopt reasonable and 
proper rules to govern its procedure, regulate and pro- 
vide for the kind and character of notices, and the serv- 
ices thereof in cases of accident and injury to employees, 
the nature and extent of the proofs and evidence, and 
the method of taking and furnishing the same, to estab- 
lish the right to benefits of compensation from the state 
insurance fund, hereinafter provided for, the forms of 
application of those claiming to be entitled to benefits 
or compensation therefrom, the method of making in- 
vestigations, physical examinations and inspections, and 
prescribe the time within which adjudications and 
awards shall be made. 

Section 9. * Every employer shall furnish the board, 
upon request, all information required by it to carry 
out the purposes of this act. The board or any member 
thereof, or any person employed by the board for that 
purpose, shall have the right to examine under oath any 
employer or officer, agent or employee thereof. 

Section 10. Every employer receiving from the board 
any blank with directions to fill the same, shall cause the 
same to be properly filled out as to answer fully and cor- 
rectly all questions therein propounded, and if unable 
to do so shall give good and sufficient reasons for such 
failure. Answers to such questions shall be verified 
under oath and returned to the board within the period 
fixed by the board for such return. 

Section 11. Each member of the board, the secre- 
tary and every inspector or examiner appointed by the 



§ 875 Ohio 1911 Statute. 2339 



board shall, for the purposes contemplated by this act, 
have power to administer oaths, certify to official acts, 
take depositions, issue subpoenas, compel the attend- 
ance of witnesses and the production of books, accounts, 
pai)ers, records, documents and testimony. 

Section 12. In case of disobedience of any person 
to comply with the order of the board, or subpoena is- 
sued by it as one of its inspectors, or examiners, or on 
the refusal of a witness to testify to any matter regard- 
ing which he may be lawfully interrogated, or refuse 
to i)ermit an inspection as aforesaid, the probate judge 
of the coimty in which the i>erson resides, on application 
of any member of the board, or any inspector or exam- 
iner appointed by it, shall compel obedience by attach- 
ment proceedings as for contempt, as in the case of dis- 
obedience of the requirements of subpoena issued from 
such court on a refusal to testify therein. 

Section 13. Each officer who serves such subpoena 
shall receive the same fees as a sheriff, and each witness 
who appears in obedience to a subpoena, before the 
board or an inspector or examiner, shall receive for his 
attendance the fees and mileage provided for witnesses 
in civil cases in courts of common pleas, which shall be 
audited and paid from the state treasury in the same 
mann^ as other expenses are audited and paid, upon 
the presentation of proper vouchers approved by any 
two members of the board. No witness subpoenaed at 
the instance of a party other than the board or an in- 
spector shall be entitied to compensation from the state 
treasury unless the board shall certify that his testimony 
was material to the matter investigated. 

SectiotL 14. In an investigation, the board may cause 
depositions of witnesses residing within or without the 
' state to be taken in the manner prescribed by the law 
for like depositions in dvil actions in the court of com- 
mon pleas. 

Section 15. A transcribed copy of the evidence and 
proceedings, or any specific part thereof, or any investi- 
gation, by a stenographer api>ointed by the board, be- 



2340 Mastbb and Servant. ^875 



ing certified by such stenographer to be a true and cor- 
rect transcript of the testimony on the investigation, 
or of a particular witness, or of a specific part thereof, 
carefully compared by him with his original notes, and 
to be a correct statement of the evidence and proceed- 
ings had on such investigation so purporting to be taken 
and subscribed, may be received in evidence by the 
board with the same effect as if such stenographer were 
present and testified to the facts so certified. A copy 
of such transcript shall be furnished on demand to any 
party upon the payment of the fee therefor, as provided 
for transcript in courts of common pleas. 

Section 16. The board shall prepare and furnish 
blank forms, and provide in its rules for their distribution 
so that the same may be readily available, of application 
for benefits or compensation from the state insurance 
fund, notices to employers, proofs of injury or death, 
of medical attendance, of employment and wage earnings, 
and such other blanks as may be deemed proper and ad- 
visable, and it shall be the duty of insured employers 
to constantly keep on hand sufficient supply of such 
blanks. 

Section 17. The state liability board of awards shall 
classify employments with respect to their degree of hazard^ 
and determine the risks of the different classes^ and fix the 
rates of premium of the risks of the same^ based upon the 
total pay roll and number of employees in each of said classes 
of employment, sufficiently large to provide an adequate 
fund for the compensation provided for in this act, and to 
create a surplus sufficiently large to guarantee a state 
insurance fund from year to year. 

Section 18. The state liability board of awards shall 
establish a state insurance fund from premiums paid 
thereto by employers and employees as herein provided, 
according to the rates of risk in the classes established 
by it, as herein provided, for the benefit of employees 
of employers that have paid the premium applicable to 
the classes to which they belong and for the benefit 
of the dependents of such employees, and shall adopt 



^ 875 Ohio 1911 STiLTum 2341 

rules and regulations with resi)eot to the collection, 
maintenance and disbursement of said fund. 

Section 19. The treasurer of state shall be the cus- 
todian of the state insurance fund, and all disbursement 
therefrom shall be paid by him, but upon vouchers signed 
by any two members of the state liability board of awards. 

Section 20. The treasurer of state shall give a sepa- 
rate and additional bond, in such amount as may be 
fixed by the governor, and with sureties to his approval, 
conditioned for the faithful performance of his duties 
as custodian of the state insurance fund herein provided 
for. 

Section 20-1. Any employer who employs five or more 
workmen or operatives regularly in the same business, 
or in or about the same establishment who shall pay 
into the state insurance fund the premiums provided 
by this act, ehall not he liable to respond in damages at 
common law or hy statute^ save as hereinafter provided^ for 
injuries or death of any such employee, wherever oc- 
curring, during the period covered by such premiums, 
provided the injured employee has remained in his service 
with notice that his employer has paid into the state insurance 
fund the premiums provided hy this act; the conbinuaiion in 
the service of such employer with such notice^ shall he deemed 
a waiver hy the employee of his right of action as aforesaid. 

Each employer paying the premiums provided by this 
act into the state insurance fund shall post in conspicuous 
places abovi his place or places of husiness typewritten or 
prirUed notices stating the fact that he has made su4^h pay- 
ment; and the same^ when so posted^ shdU constitute sufficient 
notice to his employees of the fact that he has made such 
payment; and of any subsequent payments he may make 
after such notices have been posted. 

Section 20-2. For the purpose of creating such state 
insurance fund, each employer who employes five or 
more workmen or operatives regularly in the same busi- 
ness, or in or about the same establishment, and his 
employees in this state, having elected to accept the pro- 
visions of this act, shall pay , on or before January 1, 1912, 



2342 Master akd Sebvant. ^875 

and semi-annually thereafter, the premiums of liability risk 
in the classes of employment as may be determined 
and published by the state liability board of awards. 
The said employers for themselves and their employees 
shall make such payments to the state treasurer of Ohio, 
who shall receive and place the same to the credit of such 
state insurance fund. The premiums provided for in 
this act shall be paid by the employer and employees 
in the following proportions, to wit: Ninety per cent 
of the premium 8haU be paid by the employer and ten per 
cent by the employees. Each employer is authorized to 
deduct from the pay roU of his employees ten per cent of 
the said premium for any premiimi period in proportion 
to the pay roll of such employees; no deduction shall 
be made except for that portion of the premiimi i)eriod 
antedating such pay roll. Each employer shall give a 
receipt to each employee showing the amount which has 
been deducted and paid into the state insurance fund. 

Section 21. The state liability board of awards shall 
disburse the state insurance fund to such employees of 
employers as have paid into said fund the premiums ap- 
plicable to the classes to which they belong, that have 
been injured in the course of their employment, where- 
soever such injury has occurred, and which have not 
been purposely self inflicted^ or to tiieir dependents in case 
death has ensued. 

Section 21-1. AU employers who employ five or mare 
workmen or operatives regularly in the same business, 
or in or about the same establishment who shaU not pay 
into the state insurance fund the premiums provided by this 
acty shall be liable to their employees for damages suffered 
by reason of personal injuries sustained in the course of 
employment caused by the wrongful act, neglect or de- 
fault of the employer, or any of the employer's officers, 
agents or employees, and also to the personal represen- 
tatives of such employees where death results from such 
injuries and in siu^h action the defendant shall not avail 
himself or itself of the following common law defenses: 



§ 875 Ohio 1911 Statute, 2343 



The defense of the feUovyservant rvle, the defense of the 
Msumption of risk^ or the defense of conbrihutory negligence. 

Section 21-2. But where a personal injury is suffered 
by an employee, or when death results to an employee 
from personal injuries while in the employ of an employer 
in the course of employment, and such employer has 
paid into the state insurance f imd the premium provided 
for in this act, and in case such injury has arisen from the 
wilful act of such employer or any of such employer's 
officers or agents or from the failure of such employer^ or 
any of such employer's offi/xrs or agerUs^ to comply with 
any municipal ordinance or lawful order of any duly avr 
thorized officer ^ or any statute for the protection of (he life 
or safety of employees^ then in such evenly nothing in this 
act contained shall affect the civil liability of 8ticA employer ^ 
Imt such injured employee^ or his legal represerUative in 
case death results from the injury^ may^ at his option^ 
either claim compensation under this act or institute pro- 
ceedings in the courts for his damage on account of su4ih 
injury^ and su4ih employer shall not he liable for any inn 
jury to any employee^ or to his legal representative in case 
death results^ except as provided in this act. 

Every employee, or legal representative in case death 
results, who makes application for an award from the 
state liability board of awards, waives his right to exercise 
his option to institute proceedings in any court. Every 
employee or his legal representative in case death results, 
who exercises his option to institute proceedings in court 
as provided in section 21-2, waives his right to any award; 
except as provided in section 36 of this act. 

Section 23. The board shall disburse and pay from the 
fund, for such injury, to such employees, sixh amounts 
for medical, nurse and hospital services and medicines, 
as it may deem proper, not, however, in any case, to 
exceed the sum of two hundred dollars, in addition to 
such award to su^h employee. 

Section 24. In case death ensues from the injury 
reasonable funeral expenses, not to exceed one hundred 



2344 Mastbb and Sbbvant. ^875 

and fifty dollars, shall be paid from the fund, in addition 
to such award to such employee. 

Section 25. No benefit shall be allowed for the first 
week after the injury is received, except the disburse- 
ment provided for in the next two preceding sections. 

Section 26. In case of temporary or partial disability^ 
the employee shaU receive sixty^six and two4hirds per cent. 
of the impairment of his earning capacity during the 
continuance thereof, not to exceed a maximuTn of twelve 
dollars per week, and not less than a TniniTnum of five 
dollars per week, if the employee's wages were less than 
five dollars per week, then he shall receive his full wages; 
but not to continue for more than six years from the 
date of the injury, nor to exceed three thousand four 
hundred dollars in amount from that injury. 

Section 27. In case of permanent total disability the 
award shall be sixty-six and two-thirds i>er cent of the 
average weekly wage, and shall continue until the death 
of such i)erson so totally disabled, but not to exceed a 
maximum of twelve dollars per week, and not less than 
a minimum of five dollars per week, if the employee's 
wages were less than five dollars i>er week, then he shall 
receive his full wages. 

Section 28. In case the injury causes death within the 
period of two years the benefits shall be in the amounts 
and to the persons following: 

1. If there be no dependents, the disbursements 
from the insurance fund shall be limited to the expense 
provided for in sections 23 and 24. 

2. If there are wholly dependent i)ersons at the time 
of the death, the payment shall be sixty-six and two- 
thirds per cent of the average weekly wage and to con- 
tinue for the remainder of the period between the date 
of the death and six years after the date of the injury, 
and not to amount to more than a maximum of thirty- 
four hundred dollars, nor less than a TniniTmiTn of one 
thousand five hundred dollars. 

3. If there are partly dependent i)ersons at the time 
of the death, the payment shall be sixty-six and two- 



§ 875 Ohio 1911 Statute, 2345 

thirds i>er cent of the average weekly wage and to con- 
tinue for all or such portion of the period of six years 
after the date of the injury, as the board in each case 
may determine, and not to amount to more than a maxi- 
mimi of thirty-four hundred dollars. 

Section 29. The benefits, in case of death, shall be 
paid to such one or more of the dependents of the decedent, 
for the benefit of all the dependents, as may be deter- 
mined by the board, which may apportion the benefits 
among the dependents in such manner as it may deem 
just and equitable. Payment to a dependent sub- 
sequent in right may be made, if the board deem proper, 
and shall operate to discharge all other claims therefor. 

Section 30. The dependent or person to whom bene- 
fits are paid shall apply the same to the use of the several 
beneficiaries thereof according to their respective claims 
upon the decedent for support, in compliance with the 
finding and direction of the board. 

Section 31. The average weekly wage of the injured 
I>erson at the time of the injury shall be taken as the 
basis upon which to compute the benefits. 

Section 32. If it is established that the injured em- 
ployee was of such age and experience when injured as 
that under natural conditions his wages would be expected 
to increase, the fact may be considered in arriving at his 
average weekly wage. 

Section 33. The power and jurisdiction of the board 
over each case shall be continuing, and it may from time 
to time make such modification or change with resi>ect 
to former findings or orders with respect thereto, as, in 
its opinion, may be justified. 

Section 34. The board, under special circumstances, 
and when the same is deemed advisable, may commute 
periodical benefits to one or more lump simi payments. 

Section 35. Benefits before payment shall he exempt 
from all claims or creditors and from any attachment or 
execution, and shall be paid only to such employees or 
fheir dependents. 



2346 Master and Servant. ^875 



Section 36. The board shall have full power and 
authority to hear and determine all questions within its 
jurisdiction, and its decision thereon shaU be Hnal. 

Provided^ however ^ in case the final action of such board 
denies the right of the claimant to participate at all 
in such fund on the ground that the injury was self- 
inflicted or on the ground thai the accident did not arise in 
the course of employment, or upon any other ground going 
to the basis of the claimant's right, then the claimant 
within thirty (30) days after the notice of the final action 
of such board may by filing his appeal in the common 
pleas court of the county wherein the injury was infiicted, 
be entitied to a trial in the ordinary way, and be en- 
titied to a jury if he demands it. In such a proceeding, 
the prosecuting attorney of the county, without addi- 
tional compensation, shall represent the state liability 
board of awards, and he shall be notified by the clerk 
forthwith of the filing of such appeal. 

Within thirty days after filing his appeal, the appellant 
shall file a petition in the ordinary form against such 
board as defendant and further pleadings shall be had 
in said cause according to the rules of civil procedure, 
and the court, or the jury, under the instructions of the 
court, if a jury is demanded, shall determine the right 
of the claimant; and, if they determine the right in his 
favor, shall fix his compensation within the limits and 
under the rules prescribed in this act; and any final 
judgment so obtained shall be paid by the state UabiUty 
board of awards out of the state insurance fund in the 
same manner as such awards are paid by such board. 

The costs of such proceeding, including a reasonable 
attorney's fee to the claimant's attorney to be fixed by 
the trial judge, shall be taxed against the imsuccessful 
party. Either party shall have the right to prosecute error as 
in the ordinary civil cases. 

Section 36-1. Such hoard shall not be bound by the 
usual common law or statutory rules of evidence or by any 
technical or formal rules of procedure, other than as herein 
provided; but may make the investigation in such manner 



§ 875 Ohio 1911 Statute. 2347 



as in their judgment, is best calculated to ascertain the 
substantial rights of the parties and to carry out justly 
the spirit of this act. 

Section 37. The board may make necessary expendi- 
tures to obtain statistical and other information to es- 
tablish the classes provided for in section 17. The sal- 
aries and compensation of the secretary, and all actuaries, 
accountants, inspectors, examiners, experts, clerks and 
other assistants, and all other expenses of the board 
herein authorized, including the premium to be paid by 
the state treasurer for the bond to be furnished by him, 
shall be paid out of the state treasury upon vouchers, 
signed by two of the members of such board, presented 
to the auditor of state, who shall issue his warrant there- 
for as in other cases. 

Section 38. No provision of this act relating to the 
amount of compensation shall be considered by, or 
called to the attention of the jury on the trial of any 
action to recover damages as herein provided. 

Section 39. Annually on or before the 15th day of 
November, such board, under the oath of at least two 
of its members, shall make a report to the governor which 
shall include a statement of the number of awards made 
by it, and a general statement of the causes of the ac- 
cidents leading to the injuries for which the awards 
were made, a detailed statement of the disbursements 
from the expense fund, and the condition of its respective 
funds, together with any other matters which such board 
deems it proper to call to the attention of the governor, 
including any recommendations it may have to make. 

Section 40. The expense of such board in carrying 
out the provisions of this act shall be paid until January 
1, 1912, out of the general revenue of the state not other- 
wise appropriated. Such expense shall not exceed twenty- 
five thousand dollars in addition to the salaries of members 
of such board. 

Section 41. The expenses of such board in carrying 
out the provisions of this act shall be paid from January 
1, 1912, to January 1, 1913, out of the general revenue 



2348 Mastbb akd Servant. ^876 

fund of the state not otherwise appropriated. Such 
expense shall not exceed one hundred thousand dollars 
in addition to the salary of the members. 
[Passed May 31, 1911. Approved June 15, 1911.] 

§ 876. Washington statute. (Laws 1911, c. 74, p. 345.) 

Relating to Compensation of Injxtbed Workmen. 

An act relating to the compensation of injured work- 
men in our industries, and the compensation to their 
dependents where such injuries result in death, creating 
an industrial insmrance department, making an appro- 
priation for its administration, providing for the creation 
and disbursement of funds for the compensation and 
care of workmen injured in hazardous employment, 
providing penalties for the nonobservance of regulations 
for the prevention of such injuries and for violation 
of its provisions, asserting and exercising the police 
power in such cases, and, except in certain si)ecified cases, 
abolishing the doctrine of negligence as a ground for 
recovery of damages against employers, and depriving 
the courts of jurisdiction of such controversies, and 
repealing sections 6594, 6595, and 6596 of Remington 
and Ballinger's Annotated Codes and Statutes of Wash- 
ington, relating to employees in factories, mills or work- 
shops where machinery is used, actions for the recovery 
of damages and prescribing a ptinishment for the viola- 
tion thereof. 

Section 1. Declaration of Police Power. 

The common law system governing the remedy of 
workmen against employers for injuries recieved in 
hazardous work is inconsistent with modem industrial 
conditions. In practice it proves to be economically unwise 
and unfair. Its administration has produced the result that 
little of the cost of the employer has reached the work- 
man and that little only at large expense to the public. 
The remedy of the workman has been imcertain, slow and 
inadequate. Injuries in such works, formerly occasional 
have become frequent and inevitable. The welfare 
of the state depends upon its industries, and even more 



§ 876 Washikgton 1911 Statute. 2349 

upon the welfare of its wage-worker. The State of 
Washington, therefore, exercising herein its police and 
soverign power, declares that all phases of the premises 
are withdrawn from private controversy, and sm^ and 
certain relief for workmen, injured in extra hazardous 
work, and their families and dependents is hereby pro- 
vided regardless of question of fault and to the exclusion 
of every other remedy, proceeding or compensation, 
except as otherwise provided in this act; and to that end 
cdl civil actions and civil caiLsea of action for such personal 
injuries and all jurisdiction of the courts of the stale over 
such causes are hereby abolished^ except as^ in this act 
provided. 

Section 2. Enumebation of Extra Hazardous 
Works. 

There is a hazard in all employment, but certain em- 
ployments have come to be, and to be recognized as being 
inherently constantly dangerous. This act is intended 
to apply to all such inherently hazardous works and oc- 
cupations, and it is the purpose to embrace all of them, 
which are within the legislative jurisdiction of the state, 
in the following enumeration, and they 'are intended 
to be embraced within the term ''extra hazardous" where- 
ever used in this act, to wit: 

Factories, mills and workshops where machinery is 
used; printing, electrotyping, photo-engraving and stere- 
otyping plants where machinery is used; foundries, 
blast, furnaces, mines, wells, gas works, waterworks, 
reduction works, breweries, elevators, wharves, docks, 
dredges, smelter, powder works, laundries operated by 
I>ower, quarries, engineering works, logging, lumbering 
and shipbuilding operations, logging, street and in- 
terurban railways, buildings being constructed, repaired, 
moved or demoUshed, telegraph, telephone, electric light 
or power plants or lines, steam heating or power plants, 
steam boats, tugs, ferries and railroads. If there be or 
arise any extra hazardous occupation or work other than 
those hereinabove enumerated, it shall come under this 
act, and its rate of contribution to the accident fund here- 



2350 Master and Skbyajstt. ^876 

inafter established, shall be, untU fixed by legislation, 
determined by the department hereinafter created, upon 
the basis of the relation which the risk involved bears 
to the risks classified in section 4. 

Section 3. Definitions. 

In the sense of this act words employed mean as here 
stated, to wit: 

Factories mean undertakings in which the business 
of working at commodities is carried on with i>ower- 
driven machinery, either in manufacture, repair or 
change, and shall include the premises, yard and plant 
of the concern. 

Workshop means any plant, yard, premises, room or 
place wherein power-driven machinery is employed and 
manual labor is exercised by way of trade for gain or 
otherwise in or incidental to the process of making, alter- 
ing, repairing, printing or ornamenting, furnishing or 
adapting for sale or otherwise any article or part of ar- 
ticle, machine or thing, over wMch premises, room or 
place the employer of the person working therein has 
the right of access or control. 

Mill means any plant, premises, room or place where 
machinery is used, any process of machinery, changing, 
altering or repairing any article or commodity for sale 
or otherwise, together with the yards and premises which 
are a part of the plant, including elevators, warehouses 
and bunkers. 

Mine means any mine where coal, clay, ore, mineral, 
gypsum or rock is dug or mined underground. 

Quarry means an open cut from which coal is mined, 
or clay, ore, mineral, gjrpsum, sand, gravel or rock is 
cut or taken for manufacturing, building or construction 
purposes. 

Engineering work means any work of construction, 
improvement or alteration or repair of buildings, struc- 
tures, streets, highways, sewers, street railways, rail- 
roads, logging roads, interurban railroads, harbors, docks, 
<)anals, electric, steam or water power plants, telegraph 
or telephone plants and lines, electric light or power lines, 



Washington 1911 Statute, 2261 

and includes any other works for the construction, 
alteration or repair of which machinery driven by me- 
chanical power is used. 

Except when otherwise expressly stated, employer 
means any person, body of persons, corporate or other- 
wise, and the legal personal representatives of a deceased 
employer, all while engaged in this state in any extra 
hazardous work. 

Workman means every person in this state, who, 
after September 30, 1911, is engaged in the employment 
of an employer carrying on or conducting any of the in- 
dustries scheduled or classified in section 4, whether 
by way of manual labor or otherwise, and whether upon 
the premises or at the plant or, he being in the course 
of his employment, away from the plant of his employer: 
Provided^ however, That if the injury to a workman occurring 
away from the plant of his employer is due to the negligence 
or wrong of another not in the same employ, the injured 
workman, or if death results from the injury, his vndow, 
children, or dependents, cls the case may he, shaU elect 
whether to take under this act or seek a remedy against 
such other, such election to be in advance of any suit 
under this section; and if he take under this act, the cause 
of action against such other shall be assigned to the state 
for the benefit of the accident fund; if the other choice 
is made, the accident fund shall contribute only the 
deficiency, if any, between the amount of recovery 
against such third person actually collected, and the 
compensation provided or estimated by this act for such 
case. Any such cause of action assigned to the state may 
be prosecuted, or compromised by the department, in its 
discretion. Any compromise by the workman of any such 
suit, which would leave a deficiency to be made good out 
of the accident fund, may be made only with the written 
approval of the department. 

Any individual employer or any member or officer of any 
corporate employer who shall he carried upon the pay roll 
at a salary or wage not less than the average salary or wage 
named in such pay roll and who shall be injured, shall be 

3 M. ft s.— 24 



2352 Master and Sebyakt. ^876 

entitled to the benefit of this act as and under the same 
circumstances as and subject to the same obligations as a 
workman. 

Dependent means any of the following named relatives of 
a workman whose death results from any injury and who 
leaves surviving no widow, widower, or child under the 
age of sixteen years, viz: invalid child over the age of 
sixteen years, daughter, between sixteen and eighteen 
years of age, father, mother, grandfather, grandmother, 
stepfather, stepmother, grandson, granddaughter, step- 
son, stei>daughter, brother, sister, half-sister, half-brother, 
niece, nephew, who, at the time of the accident, are 
dependent, in whole or in part, for their support upon 
the earnings of the workman. Except where otherwise 
provided by treaty, aliens, other than father or mother, 
not residing within the United States at the time of the 
accident, are not included. 

Beneficiary means a husband, wife, child or dependent 
of a workman, in whom shall vest a right to receive pay- 
ment under this act. 

Invalid means one who is physically or mentally in- 
capacitated from earning. 

The word *^ child'* as used in this act, includes a pos- 
thumous child, a child legally adopted prior to the injury, 
and an illegitimate child legitimated prior to the injury. 

The words injury or injured, as used in this act, refer 
only to an injury resulting from some fortuitous event as 
distinguished from the contraction of disease. 

Section 4. Schedule of Contribution. 

Insomuch as industry should bear the greater portion of 
the burden of the cost of its accidents, each employer shaU, 
prior to January 15th of each year, pay into the state 
treasury, in accordance with the following schedule, a sum 
equal to a percentage of his total pay roU for that year, 
to-wit: (the same being deemed the most accurate method 
of equitable distribution or in proportion to relative 
hazard) : 



§ 876 Washington 1911 Statute. 2353 

ConatrucHon Work. 

Tunnels; bridges; tarestles; sub-aqueous works; 
ditches and canals (other than irrigation with- 
out blasting) ; dock excavation; fire escai)es; sew- 
ers; house moving; house wrecking 065 

Iron, or steel frame structures or parts of structures . . 080 
Electric light or power plants or systems; telegraph 
or telephone systems; pile driving; steam rail- 
roads 050 

Steeples, towers or grain elevators, not metal framed; 
dry-docks without excavation; jetties; break- 
waters; chimneys; marine railways; waterworks 
or systems; electric railways with rock work or 
blasting; blasting; erecting fireproof doors or 

shutters 050 

Steam heating plants; tanks, water towers or wind- 
mills, not metal frames 040 

Shaft sinking 060 

Concrete buildings; freight or passenger elevators; 
fire-proofing of buildings; galvanized iron or tin 
works; gas works, or systems; marble, stone or 
brick work; road making with blasting; roofwork; 
safe moving; slate work; outside plumbing work; 

metal smokestacks or chimneys 050 

Excavations not otherwise specified; blast furnaces. . 040 
Street or other grading; cable or electric street rail- 
ways without blasting; advertising signs; omar 

mental metal work in buildings 035 

Ship or boat building or wrecking with scaffolds float- 
ing docks 045 

Carpenter work not otherwise si)ecified 035 

Installation of steam boilers or engines ; placing wire in 
conduits ; inflt>a.lling djmamos ; putting up belts for 
machinery; marble, stone or tile settings, inside 
work; mantel setting; metal ceiling work; mill 
or ship wrighting; painting of buildings or struc- 
tures; installation of automatic sprinklers; ship 
or boat rigging; concrete laying in floors, foim- 
dations or street paving; asphalt laying; covering 



2354 Master Aifn> SEBViJsrr. ^876 



steam pii)es or boilers; installation of machinery 

not otherwise specified 030 

Drilling wells; installing electrical apparatus or fire 
alarm systems in buildings; house heating or 
ventilating systems; glass settings; building 
hot houses; lathing; paper hangings; blastings; 
inside plumbing; wooden stair building; road 
making 020 

Operation (Including Repair Work) Of. 

(All combinations of material take the higher rate when 
not otherwise provided.) 

Logging railroads; railroads; dredges; intenirban 
electric railroads using third rail system; dry or 

floating docks 050 

Electric light or i>ower plants; interurban electric 

railroads not using the third rail system; quarries 040 
Street railways, all employees; telegraph or telephone 
systems; stone crushing; blasting furnaces; smel- 
ters; coal mines; gas works; steamboats; tugs; 

ferries 030 

Mines, other than coal; steam heating or power 

|«» plants 025 

Qrain elevators; laimdries; waterworks; paper or pulp 

mills; garbage works 020 

Factories Using Power^Driven Machinery. 

Stamping tin or metal 045 

Bridge work; railroad car or locomotive making or 
repairing; cooperage; logging with or without 
machinery; saw mills; shingle mills; staves; 
veneer; box; lath; packing cases; sash, door 
or blinds; barrel; keg; pail; basket; tub; wooden 
ware or wooden fibre ware; rolling mills; making 
steam shovels or dredges; tanks; water towers; 
asphalt; building material not otherwise speci- 
fied; fertilizer; cement; stone with or without 
machinery; kindling wood; masts and spars with 
or without machinery; canneries; metal stamp- 
ing extra ; creosoting works ; pile treating works. . . . 025 



§876 Washington 1911 Statute. 2355 



Excelsior; iron, steel, copper, zinc, brass or lead arti- 
cles or wares not otherwise specified; working 
in wood not otherwise specified; hardware; tile; 
brick; terra cotta; fire clay; pottery; earthenware; 
porcelain ware; peat fuel; brickettes 020 

Breweries; bottling works; boiler works; foundries; 
machine shops not otherwise specified 020 

Cordage; working in food stuffs, including oils, fruits 
and vegetables ; working in wool, cloth, leather, 
paper, broom, brush, rubber or textiles not 
otherwise specified 015 

Making jewelry, soap, tallow, lard, grease, con- 
densed milk 015 

Creameries; printing; electrotyping; photo-engrav- 
ing; engraving; lithographing 015 

Miscellaneous Work. 

Stevedoring; loi^;shoring 030 

Operating stock yards, with or without railroad entry; 

packing houses 025 

Wharf operation; artificial ice; refrigerating or cold 
storage plants; tanneries; electric systems not 

otherwise specified 020 

Theater stage employees 015 

Fire works manufacturing 050 

Powder works 100 

The application of this act as between employers and 
workmen shall date from and including the first day of 
October, 1911. The payment for 1911 shall be made 
prior to the day last named, and shall be preliminary 
collected upon the pay roll of the last preceding three 
months of operation. At the end of each year an ad- 
justment of accounts shall be made upon the basis of the 
actual pay roll. Any shortage shall be made good 
on or before February 1st, following. Every employer 
who shall enter into business at any intermediate day 
shall make his payment for the initial year or portion 
thereof before commencing operation; its amount shall 
be calculated upon his estimated pay roll, an adjustment 



t 



2356 Ma8teb Aim Sbbvakt. ^876 



shall be made on or before February let of the foUo^nng 
year in the manner above provided. 

For the purpose of such payments aoooimts shall be 
kept with each industry in accordance with the classi- 
fication herein provided and no class shall be liable for 
the depletion of the accident fund from accidents hap- 
pening in any other class. Each daas shall meet and he 
liable for the accidents occurring in stxh doss. There 
shall be collected from each class as an initial payment 
into the accident fund as above specified on or before 
the first day of October, 1911, one-fourth of the premium 
of the next succeeding year, and one-twelfth thereof 
at the close of each month after December, 1911: Pro- 
videdy Any class having sufficient funds credited to its 
account at the end of the first three months or any month 
thereafter, to meet the requirements of the accident 
fund, that class shall not be called upon for such month. 
In case of accidents occurring in such class after lapsed 
payment or payments said class shall pay the said lapsed 
or deferred payments commencing at the first lapsed 
payment, as may be necessary to meet such requirements 
of the accident fund. 

The fund thereby created sfiaU he termed the "acdderU 
fund^' which shall be devoted exclusively to the purpose 
specified for it in this act. 

In that the intent is that the fund created under this 
section shaU ultimately hecome neither more or less than 
self-supporting y exclusive of the expense of administration^ 
the rates in this section named are subject to future ad- 
justment by the legislature, and the classifications to 
re-arrangement follorwing any relative increase or de- 
crease of hazard shown by experience. 

It shall he unlawful for the employer to deduct or obtain 
any part of the premium required by this section to he by 
him paid from the wages or earnings of his workmen or any 
of them^ and the making or attempt to make any such 
deduction shaU be a gross misdemeanor. If, after this 
act shaU have come into operation, it is shown by experi- 
ence imder the act, because of poor or careless manage- 



§ 876 Washikgton 1911 Statute. 2357 



ment, any estdbliahment or work is unduly dangerous in 
comparison with other like establishment or works^ the de- 
partment may advance its classifications of risks and pre- 
mium rates in proportion to the undue hazard. In accord- 
ance with the same principle, any such increase in classi- 
fication, or premium rate, shall be subject to restoration 
to the schedule rate. Any such change in classification 
of risks or premium rates, or any change caused by change 
in the class of work, occurring during the year shall, 
at the time of the annual adjustment, be adjusted by the 
department in proportion to its duration in accordance 
with the schedule of this section. If, at the end of any 
year, it shall be seen that the contribution to the accident 
fund by any class of industry shall be less than the drain 
upon the fund on account of that class, the deficiency 
shall be made good to the fimd on the first day of Feb- 
ruary of the following year by the employers of that 
class in proportion to their respective payments for the 
past year. 

For the purposes of such payment and making good of 
deficit the particular class of industry shall be as follows: 

Construction Work. 

Class 1. Tunnels; sewer; shafting; drilling wells. 

Class 2. Bridges; mill wrighting; trestles; steeples; 
towers or grain elevators not metal framed; tanks, water 
towers, wind-mills not metal framed. 

Class 3. Sub-aqueous works; canal other than irri- 
gation or docks with or without blasting; pile driving; 
jetties; breakwaters; marine railways. 

Class 4. House moving; house wrecking; safe moving. 

Class 5. Iron or steel frame structure or parts of 
structures; fire escai)es; erecting fire-proof doors or 
shutters; blast furnaces; concrete chimneys; freight or 
passenger elevators; fire proofing of buildings; gal- 
vanized iron or tin work; marble, stone or brick work; 
roof work; slate work; plumbing work; metal smoke 
stack or chimneys; advertising signs; ornamental metal 
work in buildings; carpenter work not otherwise specified; 
marble, stone or tile setting; mantel setting; metal ceiling 



2358 Master Aim Sebvant. ^876 



work; paintiiig of buildings or structures; concrete lay- 
ing in floors or foundations; glass setting; building hot 
bouses; lathing; paper hanging; plastering; wooden stair 
building. 

Class 6. Electric light and power plants or system; 
telegraph or telephone systems; cable or electric railways 
with or without rock work or blasting; waterworks or 
systems; steam heating plants; gas works or systems; 
installation of steam boilers or engines; placing wires in 
conduits; installing djmamos; putting up belts for mar 
chinery; installation of automatic sprinklers; covering 
steam pipes or boilers; installation of machinery not 
otherwise specified; installing electrical apparatus or 
fire alarm systems in buildings; house heating or ventilat- 
ing systems. 

Class 7. Steam railroads; logging railroads. 

Class 8. Road making; street or other grading; con- 
crete laying in street paving; asphalt laying. 

Class 9. Ship or boat building with scaffolds; ship 
wrighting; ship or boat rigging; floating docks. 

Operation {Including Repair Work) Of. 

Class 10. Logging; saw mills; shingle mills; lath 
mills; masts and spars with or without machinery. 

Class 12. Dredges; dry or floating docks. 

Class 13. Electric light or power plants or systems; 
steam heating or power plants or systems; electric sys- 
tems not otherwise specified. 

Class 14. Street railways. 

Class 15. Telegraph systems; telephone systems. 

Class 16. Coal mines. 

Class 17. Quarries; stone crushing; mines other than 
coal. 

Class 18. Blast furnaces; smelters; rolling mills. 

Class 19. Gas works. 

Class 20. Steamboats; tugs; ferries. 

Class 21. Grain elevators. 

Class 22. Laundries. 

Class 23. Waterworks. 



§ 876 Washington 1911 Statute. 2359 

Clafis 24. Paper or pulp mills. 
Class 25. Garbage works; fertilizer. 

Factories ( Using Power-Driven Machinery.) 

Class 26. Stamping tin or metal. 

Class 27. Bridge work; making steam shovels or 
dredges; tanks; water towers. 

Class 28. Railroad car or locomotive making or re- 
pairing. 

Class 29. Cooperage; staves; veneer; box; packing 
cases; sash, door or blinds; barrel; keg; pail; baskets; 
tub; Vood ware or wood fibre ware; kindling wood; ex- 
celsior; working in wood not otherwise specified. 

Class 30. Asphalt. 

Class 31. Cement; stone with or without machinery; 
building material not otherwise specified. 

Class 32. Canneries of fruits or vegetables. 

Class 33. Canneries of fish or meat products. 

Class 34. Iron, steel, copper, zinc, brass or lead articles 
or wares; hardware; boiler works; foundries; machine 
shops not otherwise specified. 

Class 35. Tile; brick; terra cotta; fire clay; i>ottery; 
earthenware; porcelain ware. 

Class 36. Peat fuel; brickettes. 

Class 37. Breweries; bottling works. 

Class 38. Cordage; working in wool, cloth, leather, 
paper, brush, rubber or textile not otherwise specified. 

Class 39. Working in food stuffs, including oils, 
fruits, vegetables. 

Class 40. Condensed milk; creameries. 

Class 41. Printing; electrotyping; photo-engraving; 
engraving; lithographing; making jewelry. 

Class 42. Stevedoring; longshoring; wharf operation. 

Class 43. Stock yards; packing houses; making soap, 
taUow, lard, grease; tanneries. 

Class 44. Artificial ice, refrigerating or cold storage 
plants. 

Class 45. Theater stage employees. 

Class 46. Fire works manufacturing; powder works. 

Class 47. Creosoting works; pile treating works. 



2360 Master and Sebvant. ^ 876 

If a single establishment or work comprises several 
occupations listed in this section in different risk classes, 
the premium shall be computed according to the pay roll 
of each occupation if clearly separable; otherwise an 
average rate of premium shall be charged for the entire 
estabUshment, taking into consideration the number of 
employees and the relative hazards. 7/ an employer 
heaides employing workmen in extra hazardous employmeni 
ehaJl also employ workmen in employments not extra hazardr 
OU8 the provisions of this act shall apply ordy to the extra 
hazardous department and employments and the workmen 
employed therein. In computing the pay roll the entire 
compensation received by every workman employed 
in extra hazardous employment shall be included, whether 
it be in the form of salary, wage, piece work, overtime, 
or any allowance in the way of profit-sharing, premium 
or otherwise, and whether payable in money, board, or 
otherwise. 

Section 5. Schedule of Awards. 

Each workman who shall be injured whether upon the 
premises or at the plant or, he being in the course of his 
employment, away from the plant of his employer, or 
his family or dependents, in case of death of the work- 
man, shall receive out of the accident fund compensation 
in accordance with the following schedule, and, except 
as in this act otherwise provided, such payment shall 
be in Ueu of any and all rights of action whatsoever 
against any i>erson whomsoever. 

Compensation Schedvle. 

(a) Where death results from the injury the expenses 
of burial shall be paid in all cases, not to exceed $75.00 
in any case, and 

(1) If the workman leaves a widow or invalid widower, 
a monthly payment of $20.00 shall be made throughout 
the life of the surviving spouse, to cease at the end of 
the month in which remarriage shall occur; and the sur- 
viving spouse shall receive $5.00 per month for each 
child of the deceased under the age of sixteen years at 



§ 876 WAfiHiNGTON 1911 Statute. 2361 

time of the occurrence of the injury until minor child 
shall reach the age of sixteen years, but the total monthly 
payment under this paragraph (1) of subdivision (a) 
shall not exceed $35.00. Upon remarriage of a widow 
she shall receive, once and for all, a lump smn equal 
to twelve times her monthly allowance, viz: the sum 
of $240.00, but the monthly payment for the child or 
children shall continue as before. 

(2) 7/ the workman leaves no wife or htiahandj but a 
child or children under the age of sixteen years, a monthly 
payment of $10.00 shall be made to each such child until 
such child shall reach the age of sixteen years, but the 
total monthly payment shall not exceed $35.00, and 
any deficit shall be deducted proportionately among 
the beneficiaries. 

(3) // the workman leaves no widow^ widower^ or child 
under the age of sixteen^ but leaves a dependent or de- 
pendents, a monthly payment shall be made to each 
dependent equal to fifty per cent of the average monthly 
support actually received by such dependent from the 
workman during the twelve months next preceding the 
occurrence of the injury, but the total payment to all 
dependents in any case shall not exceed $20.00 per month. 
If any dependent is imder the age of sixteen years at the 
time of the occurrence of the injury, the payment to 
such dependent shall cease when such dependent shall 
reach the age of sixteen years. The payment to any 
dependent shall cease if and when, under the same cir- 
cunoLstance, the necessity creating llie dependency would 
have ceased if the injury had not happened. 

If the workman is under the age of twenty-one years 
and unmarried at the time of his death, the parents or 
parent of the workman shall receive $20.00 per month 
for each month after his death until the time at which 
he would have arrived at the age of twenty-one years. 

(4) In the event a surviving spouse receiving monthly 
payments shall die, leaving a child or children under the 
age of sixteen years, the sum he or she shall be receiving 
on account of such child or children shall be thereafter, 



2362 Masteb Aim Skbvakt. ^876 



until 8Uoh child shall arrive at the age of sixteen years, 
paid to the child increased one hundred per cent, but 
the total to all children shall not exceed the sum of 
thirty-five dollars per month. 

(b) Permanent total disability means the loss of both 
legs or both arms, or one leg and one arm, total loss of 
eyesight, paralysis or other condition permanently in- 
capacitating the workman from performing any work 
at any gainful occupation. 

When permanent total disability results from the injury 
the workman shall receive monthly during the period of 
such disability: 

(1) If unmarried at the time of the injury, the sum 
of twenty dollars. 

(2) If the workman have a wife or invalid husband, 
but no child under the age of sixteen years, the sum of 
$25.00. If the husband is not an invalid, the monthly 
payment of $25.00 shall be reduced to $15.00. 

(3) If the workman have a wife or husband and 
a child or children under the age of sixteen years, or, 
being a widow or a widower, have any such child or child- 
ren, the monthly payment provided in the preceding 
paragraph shall be increased by five dollars for each such 
child until such shall arrive at the age of sixteen years, 
but the total monthly payment shall not exceed thirty- 
five dollars. 

(c) If the injured workman die during the period 
of total disability, whatever the cause of death, leaving 
a widow, invalid widower or child under the age of sixteen 
years, the surviving widow or invalid widower shall 
receive twenty dollars per month until death or remarriage, 
to be increased five dollars per month for each child 
under the age of sixteen years until such child shall 
arrive at the age of sixteen years; but if such child is or 
shall be without father or mother, such child shall receive 
ten dollars per month until arriving at the age of sixteen 
years. The total combined monthly payment under this 
paragraph shall in no case exceed thirty*five dollars. 



§ 876 Washington 1911 Statute. 2363 



Upon remarriage the payments of account of a child or 
children shall continue as before to the child or children. 

(d) When the total disability is only temporary the 
schedule of payment contained in paragraphs (1), (2) and 
(3) of the foregoing subdivision (d) shall apply so long as 
the total disability shall continue, increased 50 per cent 
for the first six months of such continuance but in no case 
shall the increase operate to make the monthly payment 
exceed sixty per cent of the monthly wage (the daily wage 
multiplied by twenty-six) the workman was receiving at 
the tiine of his injury. As soon as recovery is so complete 
that the present earning power of the workman, at any 
kind of work, is restored to that existing at the time of the 
occurrence of the injury the payments shall cease. If and 
so long BS the present earning power is only partiaUy 
restored the payments shall continue in the proportion 
which the new earning power shall bear to the old. No 
compensation shall be payable out of the accident fund 
unless the loss of earning power shall exceed five per cent. 

(e) For every case of injury resvlting in death or per- 
manent total disability it shall be the duty of the depart- 
ment to forthwith notify the state treasurer, and he shall 
set apart out of the accident fimd a sum of money for the 
case, to be known as the estimated lump value of the 
monthly payments provided for it, to be calculated upon 
the theory that a monthly payment of twenty dollars, to a 
person thirty years of age, is equal to a lump sum pay- 
ment, according to the expectancy of life as fixed by the 
American Mortality Table, of four thousand dollars, but 
the total in no case to exceed the sum of four thousand 
dollars. The state treasurer shall invest said sum at 
interest in the class of securities provided by law for the 
investment of the permanent school fimd, and out of the 
same and its earnings shall be paid the monthly install- 
ments and any lump smn payment then or tiiereaf ter 
arranged for the case. Any deficiency shall be made 
good out of, and any balance or overplus shall revert to the 
accident fund. The state treasurer shall keep accurate 
account of all such segregations of the accident fund, and 



2364 Masteb Aism Sebvant. ^876 

may borrow from the main fund to meet monthly pay- 
ments pending conversion into cash of any securi^, and 
in such case shall repay such temporary loan out of the 
cash realized from the security. 

(f) Permanent partial disability means the loss of either 
one foot, one leg, one hand, one arm, one eye, one or more 
fingers, one or more toes, any dislocation where ligaments 
are severed, or any other injury known in surgery to be 
I>ermanent partial disability. For any partial disability 
resulting from an injury, the workman shaU receive com- 
pensation in a lump sum in an amount equal to the extent 
of the injury, to be decided in the first instance by the 
department, but not in any case to exceed the sum of 
$1,500.00. The loss of one major arm at or above the 
elbow shall be deemed the maximum i)ermanent partial 
disability, compensation for any other i)ermanent partial 
disabilily shall be in the proportion which the extent of 
such disability shall bear to the said ma.ximum. If the 
injured workman be under the age of twenty-one years and 
unmarried, the parents or parent shall also receive a lump 
sum payment equal to ten per cent of the amount awarded 
the nunor workman. 

(g) Should a further accident occur to a workman al- 
ready receiving a monthly payment under this section 
for a temporary disability, or who has been previously the 
recipient of a lump sum pasrment under this act his future 
compensation shall be adjusted according to the other 
provisions of this section and with regard to the combined 
effect of his injuries, and his past receipt of money under 
this act. 

(h) // aggravaiion^ diminution^ or termination of dia^ 
ability takes place or he discovered after the rale of compenr 
sation shall have been established or compensation ter- 
nunated in any case the department may, upon the appli- 
cation of the beneficiary or upon its own motion, readjust 
for future application the rate of compensation in accord- 
ance with the rules in this section provided for the same, or 
in a proper case terminate the payment. 



§ 876 Washhtgtoit 1911 Statute. 2365 

(i) A husband or wife of an injured workman, living in a 
state of abandonment for more than one year at the time 
of the injury or subsequently, shall not be a beneficiary 
under this act. 

(j) If a beneficiary shall reside or remove out of the 
state the department may, in its discretion, convert any 
monthly payments provided for such case into a lump sum 
payment (not in any case to exceed $4,000.00) upon the 
theory, according to the expectancy of life as fixed by the 
American Mortality Table, that a monthly payment of 
$20.00 to a i)erson thirty years of age is worth $4,000.00, 
or, with the consent of the beneficiary, for a smaller sum. 

(k) Any court review under this section shall be in- 
itiated in the county where the workman resides or 
resided at the time of the injury, or in which the injury 
occurred 

Section 6. Intentional Injxjbies ; Status op Minors. 

// injury or death remits to a workman from the deliberate 
intention of the workman himself to produce such injury 
or deaths neither the workman nor the widow, widower, 
child or dei)endent of the workman shall receive any pay- 
ment whatsoever out of the accident fund. // injury 
or death results to a workman from the deliberate intention 
of his employer to produce such injury or deaths the work- 
man, the widow, widower, child or dependent of the work- 
man shall have the privilege to take under this act and 
also have cause of action against the employer, as if 
this act had not been enacted, for any excess of damage 
over the amount received or receivable under this act. 

A minor working at the age legally permitted under 
the laws of this state shall be deemed sui juris for the 
purpose of this act, and no other person shall have any 
cause of action or right to compensation for an injury 
to such minor workman except as expressly provided in 
this act, but in the event of a lump sum pasrment be- 
coming due under this act to such minor workman, the 
management of the sum shall be within the probate 
jurisdiction of the courts the same as the other property 
of minors. 



2366 Masteb and Sebvant. ^876 



Section 7. Conversion into Lump Sum Payments. 

In case of death or permanent total disability the 
monthly pa3nnent provided may be converted, in whole 
or in part, into a lump sum payment (not in any case to 
exceed $4,000.00), on the theory, according to the ex- 
pectancy of life as fixed by the American Mortality 
Table, that a monthly pa3rment of $20.00 to a person of 
thirty years of age is worth the sum of $4,000.00, in which 
event the monthly pasrment shall cease in whole or in 
part accordingly or proportionately. Such conversion 
may only be made after the happening of the injury and 
upon the written application of the beneficiary (in case 
of minor children, the application may be by either parent) 
to the department, and shall rest in the discretion of the 
department. Within the rule aforesaid the amount and 
value of the lump sum pasrment may be agreed upon 
between the department and the beneficiary. 

Section 8. Defaulting Employers. 

If any employer shall default in any payment to the 
accident fund hereinbefore in this act required, the sum 
due shall be collected by action at law in the name of the 
state as plaintiff, and such right of action shall be in addi- 
tion to any other right of action or remedy. In respect 
to any injury happening to any of his workmen during 
the period of any default in the payment of any premium 
under section 4, the defaulting employer shall not, if 
such default be after demand for pasrment, be entitled 
to the benefits of this act, but shall be liable to suit by 
the injured workman (or the husband, wife, child or 
dependent of such workman in case death result from the 
accident), as he would have been prior to the passage 
of this act. 

In case the recovery actually collected in such suit 
shall equal or exceed the compensation to which the plain- 
tiff therein would be entitled under this act, the plaintiff 
shall not be paid anything out of the accident fund; if 
the said amount shall be less than such comi)ensation 
under this act, the accident fund shall contribute the 
amount of the deficiency. The person so entiUed under 



§ 876 Washington 1911 Statute. 2367 



the provisions of this section to sue shaJl have the choice 
(to he exercised before suit) of proceeding by suit or taking 
under this act. If suoh person shall take under this act, 
the cause of action against the employer shall be assigned 
to the state for the benefit of the accident fund. In any 
suit brought upon stu^h cause of action the defense of fellovh 
servant and assumption of risk shall be inctdmissible^ and 
the doctrine of comparative neglect shaU obtain. Any such 
case of action assigned to the state may be prosecuted 
or compromised by the department in its discretion. 
Any compromise by the workmen of any such suit, which 
would leave a deficiency to be made good out of the acci- 
dent fimd, may be made only with the written approval 
of the department. 

Section 9. EMPiiOTER's Responsibilitt for Safe- 
guard. 

// any workman shaU be injured because of the absence 
of any safeguard or protection required to be provided or 
maintained by, or pursuant to, any statute or ordinance, 
or any departmental regulation under any statute, or 
6e, at the time of the injury^ of less than the maximum age 
prescribed by law for the employment of a minor in the 
occupation in which he shall be engaged when injured, 
the employer shall, within ten days after demand there- 
for by the department, pay into the accident fund, in 
addition to the same required by section 4 to be paid: 

(a) In case the consequent payment to the workman 
out of the accident fund be a lump sum, a sum equal to 
fifty per cent of that amount. 

(b) In case the consequent payment to the workman 
be payable in monthly payments, a sum equal to fifty 
per cent of the lump value of such monthly payment, 
estimated in accordance with the rule stated in section 7. 

The foregoing provisions of this act shall not apply 
to the employer if the absence of such guard or protection 
be due to the removal thereof by the injured workman 
himself or with his knowledge by any of his fellow-work- 
men, unless such removal be by order or direction of the 

8 M. ft S.*~26 



2368 Masteb and Servant. §876 

employer or superintendent or foreman of the employer, 
or any one placed by the employer in control or direc- 
tion of such workman. If the removal of such guard or 
protection be by the workman himself or with his con- 
sent by any of his fellow-workmen, unless done by order 
or direction of the employer or the superintendent or 
foreman of the employer, or any one placed by the em- 
ployer in control, or direction of such workman, the 
schedule of comi)ensation provided in section 5 shall be 
reduced 10 per cent, and for the individual case of the 
workman. 

Section 10. Exemption of Awards. 

No money paid or payable under this act out of the 
accident fund shall, prior to issuance and delivery of the 
warrant therefor, be capable of being assigned^ charged, 
nor even to be taken in execuiian or attached or garnished^ 
nor shall the same pass to any other i)er8on by operation 
of law. Any such assignment or charge shall be void. 

Section 11. Non-Waiver op Act by Contract. 

No employer or workman shall exempt himself from 
the burden or waive the benefits of this act by any con- 
tract, agreement, rule or regulation, and any such con- 
tract, agreement, rule or regulation shall be pro tarUo 
void. 

Section 12. Filing claim for compensation. 

(a) Where a workman is entitled to compensation 
under this act, he shall file with the department, his ap- 
plication for such, together with the certificate of the 
physician who attended him, and it shall be the duty of 
the physician to inform the injured workman of his 
rights under this act and to lend all necessary assistance 
in Tnfl.lnng this application for compensation and such 
proof of other matters as required by the rules of the de- 
partment without charge to the workman. 

(b) Where death results from injury the parties enti- 
tled to compensation under this act, or some one in their 
behalf, shall make application for. the same to the de- 



§ 876 Washington 1911 Statute. 2369 

partment, whioh application must be accompanied with 
proof of death and proof of relationship showing the 
parties to be entitied to comi)ensation under this act, 
certificates of attending physician, if any, and such 
proof as required by the rules of the department. 

(c) If change of circumstance warrant an increase or 
rearrangement of compensation, like application shall be 
made thereof. No increase or rearrangement shall be 
operative for any period prior to application therefor. 

(d) No application 8haU he- valid or daim thereunder 
enforceable unless filed within one year after the day upon 
which the injury occurred, or the right thereto accrued. 

Section 13. Medical Examination. 

Any workman entitied to receive compensation under 
this act is required, if requested by the department, to 
submit himself for medical examination at a time and 
from time to time at a place reasonably convenient for 
the workman and as may be provided by the rules of the 
department. If the workman refuses to submit to any 
such examination, or obstructs the same, his right to 
monthly pa3rments shall be suspended until such exami- 
nation has taken place, and no compensation shall be 
payable diuihg or for account of such period. 

Section 14. Notice of Accident. 

Whenever any accident occurs to any workman it 
shall he the duty of the employer to at once report such ao- 
ddent and the injury resulting therefrom to the depart- 
ment, and also to any local representative of the de- 
partment. Such report shall state: 

1. The time, cause and nature of the accident and 
injuries, and the probable duration of the injury result- 
ing therefrom. 

2. Whether the accident arising out of or in the course 
of the injured person's employment. 

3. Any other matters the rules and regulations of 
the department may prescribe. 



2370 Masteb Aism Sbbvant. ^876 



Section 15. Inspection of Employer's Books. 

The books, records and pay rolls of the employer per- 
tinent to the administration of this act shall always be 
open to inspection by the department or its traveling 
auditor, agent or assistant, for the purpose of ascertain- 
ing the correctness of the pay roll, the men employed, 
and such other information as may be necessary for the 
department and its management imder this act. Re- 
fusal on the part of the employer to submit said books, 
records and pay rolls for such insi)ection to any member 
of the commission, or any assistant presenting written 
authority from the commission, shall subject the of- 
fending employer to a penalty of one hundred dollars 
for each offense, to be collected by civil action in the 
name of the state and paid into the accident fund, and 
the individual who shall personally give such refusal 
shall be guilty of a misdemeanor. 

Section 16. Penalty fob Misrepresentation as 
TO Pay Roll. 

Any employer who shall misrepresent to the depart- 
ment the amount of pay roll upon which the premium 
under this act is based shall be liable to the state in ten 
times the amoimt of the difference in premium paid and 
the amount the employer should have paid. The lia- 
bility to the state under this section shall be enforced in 
a civil action in the name of the state. All sums col- 
lected under this section shall be paid into the accident 
fund. 

Section 17. Public and Contract Wobk. 

Whenever the state, county or any municipal corpora- 
tion shall engage in any extra hazardous work in which 
workmen are employed for wages, this act shall be appli- 
cable thereto. The employer's pa3rments into the acci- 
dent fund shall be made from the treasury of the state, 
county or municipality. If said work is being done by 
contract, the pay roll of the contractor and the sub- 
contractor shall be the basis of computation, and in the 
case of contract work consuming less than one year in 



§ 876 Washington 1911 Statute. 2371 

performance the required payment into the accident 
fund shall be based upon the total pay roll. The con- 
tractor and any sub-contractor shall be subject to the 
provisions of the act, and the state for its general fund, 
the coimty or municipal corporation shall be entitled to 
collect from the contractor the full amount payable to 
the accident fund, and the contractor in turn shall be 
entitled to collect from the sub-contractor his propor- 
tionate amount of the payment. The provisions of this 
section shall apply to all extra hazardous work done by 
contract, except that in private work the contractor 
shall be responsible, primarily and directly, to the acci- 
dent fund for the proper i>ercentage of the total pay 
roll of the work and the owner of the property affected 
by the contract shall be surety for such payments. 
Whenever and so long as, by state law, city charter or 
municipal ordinance, provision is made for municipal 
employees injured in the course of employment, such 
employees shall not be entitled to the benefits of this 
act and shall not be included in the pay roll of the 
municipality under this act. 

Section 18. Interstate Commerce. 

The provisions of this act shall apply to employers 
and workmen engaged in intrastate and also in inter- 
state or foreign commerce, for whom a rule of liability 
or method of compensation has been or may be estab- 
lished by the Congress of the United States, only to the 
extent that their mutual connection with intrastate work 
may and shall be clearly separable and distinguishable 
from interstate or foreign commerce, except that any 
such employer and any of his workmen working only 
in this state may, with the approval of the department 
and so far as not forbidden by any act of Congress, vol- 
imtarily accept the provisions of this act by filing writ- 
ten acceptances with the department. Such acceptances, 
when filed with and approved by the department, shall 
subject the acceptors irrevocably to the provisions of 
this act to all intents and purposes as if they had been 
originally included in its terms. Payment of premium 



2372 Master ai^d Sebvakt. ^876 

shall be on the basis of the pay roll of the workmen who 
accept as aforesaid. 

Section 19. Elective Adoption op Act. 

Any employer and his employees engaged in works not 
extra hazardous may^ by their joint election^ filed with the 
department^ accept the provisions of this act^ and such ac- 
ceptances, when approved by the department, shall sub- 
ject them irrevocably to the provisions of this act to all 
intents and purposes as if they had been originally in- 
cluded in its terms. Ninety per cent, of the minimuTn 
rate specified in section 4, shall be applicable to such 
case until otherwise provided by law. 

Section 20. Court Review. 

Any employer, workman, beneficiary, or person feel- 
ing aggrieved at any decision of the department affect- 
ing his interest under this act may have the same re- 
viewed by a proceeding for that purpose, in the nature of 
an appeal, initiated in the superior court of the county 
of his residence (except as otherwise provided in sub- 
division (1) of section numbered 5) in so far as such 
decision rests upon questions of fact, or of the proper appli- 
cation of the provisions of this act, it being the intent 
that matters resting in the discretion of the department 
shaU not he subject to review. The proceedings in every 
api>eal shall be informal and summary, but full oppor- 
tunity to be heard shall be had before judgment is pro- 
nounced. No such appeal shall be entertained unless 
notice of appeal shall have been served by mail or per- 
sonally upon some member of the conunission within 
twenty days following the rendition of the decision appealed 
from and communication thereof to the person affected 
thereby. No bond shall be required, except that no 
appeal by the employer from a decision of the dei>art- 
ment under section 9 shall be ineffectual unless, within 
five days following the service of notice thereof, a bond, 
with surety satisfactory to the court, shall be filed, con- 
ditioned to perform the judgment of the court. Except 
in the case last named an appeal shall not be a stay. 



§ 876 Washington 1911 Statute. 2373 

The oalling of a jury shall rest in the discretion of the 
court except that in cases arising under sections 9, 15 
and 16 either party shall be entitied to a jury trial upon 
demand. It shall be urdawfiU for any attorney engaged 
in any stich appeal to charge or receive any fee therein in 
excess of a reasonable fee, to be fixed by the court in the 
case, and, if the decision of the department shall be 
reversed or modified, such fee and the fees of medical 
and other witnesses and the costs shall be payable out 
of the administration fund, if the accident fund is ef- 
fected by the litigation. In other respects the practice 
in civil ceases shall apply. Appeal shall lie from the 
judgment of the superior court as in other civil cases. 
The attorney general shall be the legal adviser of the 
department and shall represent it in all proceedings, 
whenever so requested by any of the commissioners. 
In all court proceedings imder or pursuant to this act 
the decision of the department shall be prima facte cor- 
rect, and the burden of proof shall be upon the party 
attacking the same. 

Section 21. Cbsation of Depabtment. 

The administration of this act is imiiosed uiK)n a de- 
partment, to be known as the Indtistrial Insurance De^ 
partmenlj to consist of three commissioners to be ap- 
pointed by the governor. One of them shall hold office 
for the first two years, another for the first four years, 
and another for the first six years following the passage 
and approval of this act. Thereafter the term shall be 
six years. Each commissioner shall hold imtil his suc- 
cessor shall be apiK)inted and shall have qualified. A 
decision of any question arising imder this act concurred 
in by two of the commissioners shall be the decision of 
the department. The governor may at any time remove 
any commissioner from office in his discretion, but with- 
in ten days following any such removal the governor 
shall file in the office of the secretary of state a state- 
ment of his reasons thereof. The commission shall 
select one of their members as chairman. The main 
office of the^commission shall be at the state capitol, 



2374 Master and Sebvant. ^876 

but branch offices may be established at other places 
in the state. Each member of the commission shall 
have power to issue subpoenas requiring attendance of 
witnesses and the production of books and documents. 

Section 22. Salaby of Commissioners. 

The salary of each of the commissioners shall be thirty- 
six hundred dollars i)er annum, and he shall be allowed 
his actual and necessary traveling and incidental ex- 
penses; and any assistant to the commissioners shall be 
paid for each full day's service rendered by him, his 
actual and necessary traveling expenses, and such com- 
I)ensation as the commission may deem proper, not to 
exceed six dollars per day to an auditor, or five dollars 
per day to any other assistant. 

Section 23. Depttties and Assistants. 

The commissioners may appoint a sufficient number 
of auditors and assistants to aid them in the adminis- 
tration of this act, at an expense not to exceed five thous- 
and dollars per month. They may employ one or more 
physicians in each county for the purpose of official med- 
ical examinations, whose compensation shall be limited 
to five dollars for each examination and report therein. 
They may procure such record books as they may deem 
necessary for the record of the financial transactions 
and statistical data of the department, and the neces- 
sary documents, forms and blanks. They may estab- 
lish and require all employers to install and maintain 
an imif orm form of pay roll. 

Section 24. Conduct, Management and Supervis- 
ion OF Department. 

The commission shall, in accordance with the provis- 
ions of this act: 

1. Establish and promulgate rules governing the ad- 
ministration of this act. 

2. Ascertain and establish the amounts to be paid 
into and out of the accident fund. 



§ 876 WASHiNGTOBr 1911 Stattjtb. 2375 

3. Regfulate the proof of accident and extent thereof, 
the proof of death and the proof of relationship and the 
extent of dependency. 

4. Supervise the medical, surgical and hospital treat- 
ment to the intent that same may be in all cases suit- 
able and wholesome. 

5. Issue proi>er receipts for moneys received, and cer- 
tificates for benefits accrued and accruing. 

6. Investigate the causes of all serious injuries and 
report to the governor from time to time any violation 
or laxity in performance of protective statutes or regu- 
lations coming under the observation of the department. 

7. Compile and preserve statistics showing the num- 
ber of accidents occurring in the establishment or works 
of each employer, the liabilities and expenditures of the 
accident fund on account of, and the premium collected 
from the same, and hospital charges and expenses. 

8. Make annual reports to the governor (one of 
them not more than sixty nor less than thirty dayB 
prior to each regular session of the legislature) of the 
workings of the department, and showing the financial 
status and the outstanding obligations of the accident 
fund, and the statistics aforesaid. 

Section 25. Medical Witnesses. 

Upon the api)eal of any workman from any decision 
of the department affecting the extent of his injuries 
or the progress of the same, the court may appoint not 
to exceed three physicians to examine the physical con- 
dition of the appellant, who shall make to the court 
their report thereon, and they may be interrogated be- 
fore the court by or on behalf of the appellant in rela- 
tion to the same. The fee of each shall be fixed by the 
court, but shall not exceed ten dollars per day each. 

Section 26. Disbursement of Funds. 

Disbursement out of the funds shall be made only 
uiK)n warrants drawn by the state auditor upon vouch- 
ers therefor transmitted to him by the department and 
audited by him. The state treasurer shall pay every 



2376 Masteb and Sbbvakt. ^876 



warrant out of the fund uiK)n which it is drawn. If, at 
any time, there shall not be suffident money in the fund 
on which any such warrant shall have been drawn where- 
with to pay the same, the employer on account of whose 
workman it was that the warrant was drawn shall pay 
the same, and he shall be credited upon his next fol- 
lowing contribution to such fund the amount so paid 
with interest thereon at the legal rate from the date of 
such payment to the date such next following contri- 
bution became payable, and if the amount of the credit 
shall exceed the amount of the contribution, he shall 
have a warrant ui>on the same fund for the excess, and 
if any such warrant shall not be so paid, it shall remain, 
nevertheless, payable out of the fund. The state treas- 
urer shall to such extent as shall appear to him to be ad- 
visable keep the moneys of the unsegr^;ated iK)rtion of 
the accident fund invested at interest in the class of 
securities provided by law for the investment of the per- 
manent school fund. The state treasurer shall be liable 
on his official bond for the safe custody of the moneys 
and securities of the accident fund, but all the provisions 
of an act approved February 21, 1907, entitled "An 
act to provide for state depositories and to regulate 
deposits of state moneys therein", shall be applied to 
said moneys and the handling thereof by the state treas^ 
urer. 

Section 27. Test op Invalidity op Act. 

If any employer shall be adjudicated to be outside 
the lawful scope of this act, the act shall not apply to 
him or his workmen, or if any workman shall be adju- 
dicated to be outside the lawful scope of this act because 
of remoteness of his work from the hazard of his em- 
ployer's work, any such adjudication shall not impair 
the validity of this act in other respects, and in every 
such case an accounting in accordance with the justice 
of the case shall be had of moneyB received. If the pro- 
visions of section 4 of this act for the creation of the ac- 
cident fund, or the provisions of this act making com- 
I)ensation to the workman provided in it exclusive of 



§ 876 Washington 1911 Statute, 2377 



any other remedy on the part of the workman shall be 
held invalid the entire act shall be thereby invalidated 
except the provisions of section 31, and an accounting 
according to the justice of the case shall be had of moneys 
received. In other respects an adjudication of invalid- 
ity of any part of this act shall not affect the validity 
of the act as a whole or any other part thereof. 

Section 28. Statute of Limitations Saved. 

If the provisions of this act relative to compensation 
for injuries to or death of workmen become invalid be- 
cause of any adjudication, or be repealed, the i)eriod in- 
tervening between the occurrence of an injury or death, 
not previously compensated for under this act by lump 
payment or completed monthly payments, and such 
repeal or the rendition of the final adjudication of in- 
validity, shall not be computed as a part of the time lim- 
ited by law for the commencement of any action re- 
lating to such injury or death: Providedj That such ac- 
tion be commenced within one year after such repeal 
or adjudication; but in any such action any sum paid 
out of the accident fund to the workman on account 
of injury, to whom the action is prosecuted, shall be 
taken into accoimt or disposed of as follows: If the 
defendant employer shall have paid without delinquency 
into the accident fund the payment provided by section 
4, such sums shall be credited upon the recovery as pay- 
ment thereon, otherwise the sum shall not be so cred- 
ited but shall be deducted from the sum collected and 
be paid into the said fund from which they had been 
previously disbursed. 

Section 29. Appropriations. 

There is hereby appropriated out of the state treas- 
ury the sum of one hundred and fifty thousand dollars, 
or so much thereof as may be necessary, to be known as 
the administration fund, out of which the salaries, trav- 
eling and office expenses of the department shall be paid, 
and also all other expenses of the administration of the 
accident fund; and there is hereby appropriated out of 



2378 Masteb and Servant. ^876 

the accident fund for the purpose to which said fund is 
applicable the sum of $1,500,000.00, or so much thereof 
as shall be necessary for the purposes of this act. 

Section 30. Safeguard Regulations Preserved. 

Nothing in this act contained shall repeal any exist- 
ing law providing for the installation or maintenance of 
any device, means or method for the prevention of acci- 
dents in extra hazardous work or for a penalty or pun- 
ishment for failure to install or maintain any such pro- 
tective device, means or method but sections 8, 9 and 10 
of the act approved March 6, 1905, entitled: ''An act 
providing for the protection and health of employees in 
factories, mills or workshops, where machinery is used, 
and providing for suits to recover damages sustained 
by the violation thereof, and prescribing a punishment 
for the violation thereof and repealing an act entitled, 
^ An act providing for protection of employees in factories, 
miUs, or workshops where machineiy is used, and pro- 
viding for the punishment of the violation thereof, ap- 
proved March 6, 1903', and repealing all other acts or 
parts of acts in conflict herewith," are hereby repealed, 
except as to any cause of action which shall have accrued 
thereunder prior to October 1, 1911. 

Section 31. Distributions op Funds in Case of 
Repeal. 

If this act shall be hereafter repealed, all moneys 
which are in the accident fund at the time of the repeal 
shall be subject to such disposition as may be provided 
by the legislature, and in default of such legislative pro- 
vsion distribution thereof shall be in accordance with 
the justice of the matter, due regard being had to obligar 
tions of compensation incurred and existing. 

Section 32. Saving Clause. 

This act shall not affect any action pending or cause 
of action existing on the 30th day of September, 1911. 



§877 Wmooksik 1911 Statute. 2379 

§ 877. Wisconsin statute. Laws 191 1, c. SO, as amend- 
ed by Laws 191 1| c. 644, the amendments being en- 
closed in brackets. 

An Act to create sections 2394r-l to 2394r-32 of the 
statutes (to be included in a new chapter of the statutes 
to be numbered chapter 110a), relating to the liability 
of employers for injuries or death sustained by their 
employees, providing for compensation for the ac- 
cidental injury or death of employees, establishing an 
industrial accident board, defining its powers, providing 
for a review of its awards, and making an appropria- 
tion to carry out the provisions of this act. 
The people of the State of Wisconsin^ represented in Senate 
and Assemblyj do enact as follows: 
Section 1. There are added to the statutes thirty-two 
new sections to read: Section 2394r'l. In any action to 
recover damages for a personal injury sttstained within this 
state by an employee while engaged in the line of his duty 
as suchf or for death resulting from personal injury so sus- 
tained^ in which recovery is sought upon the ground of want 
of ordinary care of the employer, or any officer, agent, 
or servant of the employer, it shall not he a defense: 

1. That the employee either expressly or impliedly 
assumed the risk of the hazard complained of. 

2. When such employer has at the time of the accident 
in a common emplosnoient four or more employees, that 
the injury or death was caused in whole or in part by the 
want of ordinary care of a fellow-servant. 

Any employer who has elected to pay compensation as 
hereinafter provided shall not he suhject to the provisions 
of this section tSQIfl. 

Section 2394r'2. No contract^ rule, or regulation, shall 
exempt the employer from any of the provisions of 
[section 2394-1]. 

Section 2394-3. Except as regards employees working 
in shops (yr oJffUes of a raUroad company, who are within 
the provisions of subsection 9 of section 1816 of the 
statutes, the term ** employer*' as used in [sections 2394-1 
and 2394-2] shall not include any railroad company as 



2380 Masteb and Sebvant. ^877 

defined in subsection 7 of said section 1816, said section 
1816 being continued in force unaffected, except as afore- 
said, by [sections 2394r-l and 2394r-2.] 

Section 2394-4. Liability for the compensation hereivr 
after provided for^ in lieu of any other liability whatsoever, 
shall exist against an employer for any personal injury 
acddently sustained by his employee, and for his death, 
if the injury shall proximately cause death, in those 
cases where the following conditions of compensation 
concur: 

1. Where y at the time of the accident, .both the employer 
and employee are subject to the provisions of [sections 
2394r'l to 2394-31 indusiye] according to the succeeding 
sections hereof. 

2. Where, at the time of the accident, the employee is 
performing service growing out of and incidental to his emr 
ployment. 

3. Where the injury is proximately caused by accident, 
and is not so caused by wilful misconduct. 

And where such conditions of compensation exist for 
any personal injury or death, the right to the recovery of 
such compensation pursuant to the provisions of [sections 
2394-1 to 2394-31 inclusive], shall be the exclusive remedy 
against the employer for such injury or death; in all other 
cases the liability of the employer shall be the same as 
if this and the succeeding sections of [sections 2394-1 to 
2394-31 inclusive] had not been passed, but shall be 
subject to the provisions of [sections 2394-1 to 2394-3 
inclusive] of this act. 

Section 2394-5. The following shall constitute employers 
subject to the provisions of [sections 2394-1 to 2394-31 
inclusive] within the meaning of the preceding section: 

1. The state, and each county, city, town, village, 
and school district therein. 

2. Every person, firm, and private corporation (in- 
cluding any pubhc service corporation), who has any 
person in service under any contract of hire, express or 
implied, oral or written, and who, at or prior to the time 
of the accident to the employee for which compensation 



§877 Wisconsin 1911 Statute. 2381 

under [sections 2394r'l to 2394r'31 indusiye] may be 
claimed, shall, in the mamier provided in the next section, 
have elected to become subject to the provisions of 
[sections 2394-1 to 2394r'31 inclusive], and who shall 
not, prior to such accident, have effected a withdrawal 
of such election, ia the mamier provided in the next sec- 
tion. 

Section 2394-6. Sitch election on the part of the em- 
ployer shall be made by filing with the industrial accident 
board, hereinafter provided for, a written statement to 
the effect that he accepts the provisions of [sections 
2394-1 to 2394-31 inclusive], the filing of which state- 
ment shall operate, within the meaning of section 2394- 
5, to subject such employer to the provisions of [sections 
2394-1 to 2394-31 inclusive] for the term of one year 
from the date of the filing of such statement, 
and thereafter, without further act on his part, for suc- 
cessive terms of one year each, unless such employer 
shall, at least sixty days prior to the expiration of such 
first or any succeeding year, file ia the office of said board 
a notice ia writing to the effect that he desires to with- 
draw bis election to be subject to the provisions of [sections 
2394-1 to 2394-31 inclusive]. 

Section 2394-7. The term ^^employee** as used ia sec- 
tion 2394-1 shall be construed to mean: 

1. Every person in the service of the state, or of any 
county, city, town, village, or school district therein, 
under any appointment, or contract of hire, express or 
implied, oral or written, except any official of the state, 
or of any county, city, town, village, or school district 
therein, provided that one, employed by a contractor, 
who has contracted with a county, city, town, village, 
school district, or the state, through its representatives, 
shall not be considered an employee of the state, county, 
city, town, village, or school district which made the 
contract. 

2.Every person in the service of another under any 
contract of hire, express or implied, oral or written, ia- 
duding aliens, and also iaduding minors who are legally 



2382 Masteb and Sbevant. §877 



permitted to work under the laws of the state (who, for 
the purposes of [section 2394-8], shall be considered 
the same and shall have the same power of contracting 
as adult employees), but not including any person whose 
emplosnoient is but casual or is not in the usual course 
of the trade, business, profession, or occupation of his 
employer. 

Section 2394-8. Any employee as defined in sub- 
section 1 of the preceding section shaU be mbject to the 
provieions of [sections 2394-1 to 2394-31 inclusive]. 
Any employee as defined in subsection 2 of the preceding 
section shall be deemed to have accepted and shall, 
within the meaning of section 2394-4, be subject to the 
provisions of [sections 2394-1 to 2394-31 inclusive], 
if, at the time of the accident upon which liability is 
claimed: 

1. The employer charged with 8iu:h liahility is subject 
to the provisions of [sections 2394-1 to 2394-31 inclusive], 
whether the employee has actual notice thereof or not; and 

2. Such employee shall not, at the time of entering 
into his contract of hire, express or impUed, with such 
employer, have given to his employer notice in writing 
that he elects not to be subject to the provisions of [sections 
2394-1 to 2394-31 inclusive] ; or, in the event that such 
contract of hire was made in advance of such employer 
becoming subject to the provisions of [sections 2394-1 
to 2394-31 inclusive], such employee shall have given 
to his employer notice in writing that he elects to be sub- 
ject to such provisions, or without giving either of such 
notices, shall have remained in the service of such em- 
ployer for thirty days after the employer has filed with 
said board an election to be subject to the terms of [sec- 
tions 2394-1 to 2394-31 inclusive]. 

Section 2394-9. Where hability for compensation 
tmder [sections 2394 to 2394-31 inclusive] exists, the 
same shall be as provided in the following schedule: 

1. Such medical and surgical treatment, medicines, 
medical and surgical supplies, crutches, and apparatus, 
;as may be reasonably required at the time of the injury 



§ 877 Wisconsin 1911 Statute. 2383 

and thereafter during the disability, but not exceeding 
ninety days, to cure and relieve from the effects of the 
injury, the same to be provided by the employer; and in 
case of his neglect or refusal seasonably to do so, the 
employer to be hable for the reasonable expense incurred 
by or on behalf of the employee in providing the same. 

2. // the accident causes disability ^ an indemnity which 
shall be payable as wages on the eighth day after the 
injured employee leaves work as the result of the injury, 
and weekly thereafter, which weekly indemnity shall 
be as follows: 

(a) If the accident causes total disability, sixty-five 
per cent, of the average weekly earnings during the period 
of such total disabihty; provided that, if the disability 
is such as not only to render the injured employee entirely 
incapable of work, but also so helpless as to require the 
assistance of a nurse, the weekly indemnity during the 
period of such assistance after the first ninety days 
shall be increased to one hundred per cent of the average 
weekly earnings. 

(b) If the accident causes partial disability, sixty-five 
per cent of the weekly loss in wages during the period of 
such partial disability. 

(c) If the disability caused by the accident is at times 
total and at times partial, the weekly indemnity during 
the periods of each such total or partial disability shall be 
in accordance with said subdivisions (a) and (b), resi)ec- 
tively. 

(d) Said subdivisions (a), (b), and (c) shall be subject 
to the following limitations: 

Aggregate disability indemnity for injury to a single 
employee caused by a single accident shall not exceed 
four times the average annual earnings of such employee. 

The aggregate disability period shall not, in any event, 
extend beyond fifteen years from the date of the accident. 

The weekly indemnity due on the eighth day after 
the employee leaves work as the result of the injury may 
be withheld until the twenty-ninth day after he so leaves 
work; if recovery from the disabihty shall then have 

8 M. ft s.— 26 



2384 Mastbb and Sbrvant. §877 

occurred, such first weekly indenmity shall not be re- 
coverable; if the disability still continues, it shall be added 
to the weekly indemnity due on said twenty-ninth day 
and be paid tiierewith. 

If the period of disability does not last more than one 
week from the day the employee leaves work as the result 
of the injury, no indemnity whatever shall be recoverable. 

3. The death of the injured employee shall not afifect 
the obhgation of the employer under subsections 1 and 
2 of this section, so far as his hability shall have become 
payable at the time of death; but the death shall be 
deemed the termination of disability, and the employer 
shall thereui>on be Uable for the following death benefits 
in lieu of any further disabiUty indemnity: 

(a) In case the deceased employee leaves a person or 
persons wholly dependent on him for support, the death 
benefit shall be a sum sufficient, when added to the in- 
demnity which shall at the time of death have been paid 
or become payable under the provisions of subsection 2 
of this section, to make the total compensation for the 
injury and death (exclusive of the benefit provided for 
in subsection 1), equal to four times his average amiual 
earnings; the same to be payable, unless and until the 
board shall direct payment in gross, in weekly install- 
ments corresponding in amount to iJie weekly earnings 
of the employee. 

(b) In case the deceased employee leaves no one wholly 
dependent on him for support, but one or more persons 
partially dependent therefor, the death benefit shall be 
such percentage of four times such average annual earn- 
ings of the employee as the average annual amount 
devoted by the deceased to the support of the person 
or persons so partially dependent on him for support 
bears to such average amiual earnings, the same to 
be payable, unless and until the board shall direct pay- 
ment in gross, in weekly installments corresponding 
in amount to the weekly earnings of the employee; 
provided that the total compensation for the injury 
and death (exclusive of the benefit provided for in said 



^877 Wisconsin 1911 Statttte. 2385 

subsection 1) shall not exceed four times such average 
annual earnings. 

(c) Liability for the death benefits provided for in 
subdivisions (a) and (b) respectively shall only exist 
where the accident is the proximate cause of death; 
provided that, if the accident proximately causes per- 
manent total disability, and death ensues from some 
other cause before disability indemnity ceases, the death 
benefit shall be the same as though the accident had caused 
death; and provided further that, if the accident prox- 
imately causes permanent partial disabihty and death 
ensues from some other cause before disability indemnity 
ceases, liability shall exist for such percentage of the death 
benefits provided for in said subdivision (a) or (b) (as 
the case may be), as shall fairly represent the propor- 
tionate extent of the impairment of earning capacity 
caused by such permanent partial disability in the em- 
plosnoient in which the employee was worldng at the time 
of the accident. 

(d) If the deceased employee leaves no person de- 
pendent upon him for support, and the accident proxi- 
mately causes death, the death benefit shall consist of 
the reasonable expense of his burial, not exceeding $100. 

Section 2394-10. I. The weekly earnings referred 
to in section 2394-9 shall be one fifty-second of the average 
annual earnings of the employee; average annual earnings 
shall not be taken at less than $375, nor more than $750, 
and between said limits shall be arrived at as follows: 

(a) K the injured employee has worked in the employ- 
ment in which he was working at the time of the accident, 
whether for the same employer or not, during substan- 
tially the whole of the year immediately preceding his 
injury, his average annual earnings shaU consist of three 
hundred times the average daily wage or salary which 
he has earned in such employment during the days 
when so employed. 

(b) If the injured employee has not so worked in 
such employment during substantially the whole of such 
immediately preceding year, his average annual earnings 



2386 Masteb akd Ssbvant. ^877 



shall consist of three hundred times the average daily 
wage or salary which an employee of the same class 
working substantially the whole of such immediately 
preceding year in the same or a similar employment 
in the same or a neighboring place shall have earned in 
such employment dining the days when so employed. 

(c) In cases where the foregoing methods of arriving 
at the average annual earnings of the injured employee 
cannot reasonably and fairly be applied, such annual 
earnings shall be taken at such sum as, having regard 
to the previous earnings of the injured employee, and of 
other employees of the same or most similar class, work- 
ing in the same or most similar employment, in the same 
or neighboring locality, shall reasonably represent the 
annual earning capacity of the injured employee at the 
time of the accident in the emplosnoient in which he was 
working at such time. 

(d) The fact that an employee has suffered a previous 
disabihty, or received compensation therefor, shall not 
preclude compensation for a later injury, or for death, 
but in determining compensation for the later injury, 
or death, his average annual earnings shall be such 
sum as will reasonably represent his annual earning 
capacity at the time of the later injury, in the employ- 
ment in which he was working at such time, and shall be 
arrived at according to, and subject to the limitations 
of, the previous provisions of this section. 

2. The weekly loss in wages referred to in section 2394-9 
shall consist of such percentage of the average weekly 
earnings of the injured employee, computed according 
to the provisions of this section, as shall fairly represent 
the proportionate extent of the imi>airment of his earn- 
ing capacity in the emplojnaient in which he was working 
at the time of the accident, the same to be fixed as of the 
time of the accident, but to be determined in view of 
the nature and extent of the injury. 

3. The following shall he conclusively presumed to he 
solely and wholly dependent for support upon a deceased 
employee: 



§ 877 Wisconsin 1911 Statute. 2387 

(a) A wife upon a husband with whom she is living 
at the time of his death. 

(b) A husband upon a wife with whom he is living 
at the time of her death. 

(c) A child or children under the age of eighteen 
years (or over said age, but physically or mentally in- 
capacitated from earning) 9 upon the parent with whom 
he or they are hving at the time of the death of such 
parent, there being no surviving dependent parent. In 
case there is more than one child thus dependent, the 
death benefit shall be divided equally among them. ;i 

In all other cases questions of entire or partial de- 
pendency shall be determined in accordance with the fact, 
as the fact may be at the time of the death of the em- 
ployee ; and in such other cases, if there is more than one 
person wholly dependent, the death benefit shall be divided 
equally among them, and persons partially dependent, 
if any, shall receive no part thereof; and if there is more 
than one person partially dependent, the death benefit 
shall be divided among them according to the relative 
extent of their dependency. 

4. No person shall he considered a dependent unless a 
member of the family of the deceased employee, or 
bears to him the relation of husband or widow, or lineal 
descendant, or ancestor, or brother, or sister. 

5. Questions as to who shall constitute dependents and 
the extent of their dependency shall be determined as of the 
date of the accident to the employee, and their right to 
any death benefit shall become fixed as of such time, 
irrespective of any subsequent change in conditions; 
and the death, benefit shall be directly recoverable by 
and payable to the dependent or dependents entitled 
thereto or their legal guardians or trustees; provided 
that in case of the death of a dependent whose right to 
a death benefit has thus become fixed, so much of the 
same as is then unpaid shall be recoverable by and 
payable to his personal representative in gross. No per- 
son shall be excluded as a dependent who is a non-res- 
ident alien. 



2388 Mabteb and Sebvant. ^877 



6. No dependent of an injured employee shall be 
deemed, during the life of such employee, a party in 
interest to ^.ny proceeding by him for the enforcement 
or collection of any claim for compensation, nor as 
respects the compromise thereof by such employee. 

[Explanation by author. IVom here on substitute words 
"section 2394—1 to 2394-31 inclusive,*' for words "this 
act," as per amendment by Laws 1911, c. 664]. 

Section 2394 — 11. No claim to recover compensation 
under this act shall be maintained unless, within thirty 
days after the occiurence of the accident which is claimed 
to have caused the injury or death, notice in writing^ stating 
the name and address of the person injured^ the time and 
place where the accident occurred^ and the nature of the injury^ 
and signed by the person injured or by some one on his behalf^ 
or in case of his death, by a dependent or some one on his 
behalf, shall be served upon the employer, either by de- 
Uvering to and leaving with him a copy of such notice, 
or by mailing to him by registered mail a copy thereof in a 
sealed and i>ostpaid envelope addressed to him at his last 
known place of business or residence. Such mailing shall 
constitute completed service. Provided, however, that 
any payment of compensation under this act, in whole or 
in part, made by the employer before the expiration of said 
thirty days, shall be equivalent to the notice herein re- 
quired ; and provided f mother, that the failure to give any 
such notice, or any defect or inaccuracy therein, shall not 
be a bar to recovery under this act if it is found as a fact 
in the proceedings for collection of the claim that there was 
no intention to mislead the employer, and that he was not 
in fact misled thereby; and provided further, that if no 
such notice is given and no payment of compensation 
made, within two years from the date of the accident, the 
right to comi>ensation therefor shall be wholly barred. 

Section 2394-12. Wherever in case of injury the 
right to compensation under this act would exist in favor 
of any employee, he shall, upon the written request of 
his employer, submit from time to time to examination 
by a regular practicing physician^ who shall be provided 



§877 Wisconsin 1911 Statute. 2389 

and paid for by the employer, and shall likewise sub- 
mit to examination from time to time by any regular 
physician selected by said industrial accident board, or 
a member or examiner thereof. The employee shall be 
entitled to have a physician, provided and paid for by 
himself, present at any such examination. So long as the 
employee, after such written request of the employer, shall 
refuse to submit to such examination, or shall in any way 
obstruct the same, his right to begin or maintain any 
proceeding for the collection of compensation shall be 
suspended; and if he shall refuse to submit to such ex- 
amination after direction by the board, or any member 
or examiner thereof, or shall in any way obstruct the 
same, his right to the weekly indemnity which shall 
accrue and become payable during the period of such 
refusal or obstruction, shall be barred. Any physician 
who shall make or be present at any such examination 
may be required to testify as to the results thereof. 

Section 2394-13. There is hereby created a board 
which shall be known as the indttstrial accident hoard. 
The commissioner of labor and industrial statistics shall 
be ex-officio a member of such board. He may, however, 
authorize the deputy commissioner to act in his place. 
Within thirty days after the passage of this act, the gov- 
ernor, by and with the advice and consent of the sen- 
ate, shall appoint a member who shall serve two years, 
and another who shall serve four years. Thereafter 
two members shall be appointed and confirmed for terms 
of four years each. Vacancies shall be filled in the 
same manner for the unexpired term. Each member 
of the board, before entering upon the duties of his of- 
fice, shall take the oath prescribed by the constitution. 
A majority of the board shall constitute a quorum for 
the exercise of any of the powers or authority conferred 
by this act, and an award by a majority shaU be vaUd. 
In case of a vacancy, the remaining two members of 
the board shall exercise all the powers and authority of 
the board until such vacancy is filled. Each member 
of the board, including the said commissioner, shall 



2390 Mastbb and Servant. §877 



ceive an annual salary of $5,000. This salajy shall, as 
to the commissioner of labor and industrial statistics, 
be in full for his services as such commissioner of labor 
and industrial statistics. 

Section 2394-14. The hoard shall organize by choos- 
ing one of its members as chairman. Subject to the 
provisions of this act, it may adopt its own rules of pro- 
cedure and may change the same from time to time in 
its discretion. The board, when it shall deem it nec- 
essary to expedite its business, may from time to time 
employ one or more expert examiners for such length of 
time as may be required, such examiners to be exempt 
from the operation of [sections 990-1 to 990-32, inclu- 
sive, of the statute]. It may also appoint a secretary, 
who shall be similarly exempt, and such clerical help as 
it may deem necessary. It shall fix the compensation 
of all assistants so api>ointed. It shall provide itself 
with a seal for the authentication of its orders, awards, 
and proceedings, upon which shall be inscribed the 
words "Industrial Accident Board — ^Wisconsin — Seal." 
It shall keep its office at the capitol, and shall be pro- 
vided by the superintendent of public property with a 
suitable room or rooms, necessary office furniture, sta- 
tionary, and other supplies. The members of the board 
and its assistants shall be entitled to receive from the 
state their actual and necessary expenses while travel- 
ing on the business of the board; but such expenses shall 
be sworn to by the person who incurred the same, and 
be approved by the chairman of the board, before pay- 
ment is made. All salaries and expenses authorized by 
this act shall be audited and paid out of the general 
funds of the state, the same as other general state ex- 
penses are audited and paid. 

Section 2394-15. Any dispute or controversy concern- 
ing compensation under this act, including any in which 
the state may be a party, shall be submitted to said 
industrial accident board in the manner and with the 
effect provided in this act. Every compromise of any 
claim for compensation under this act shall be subject 



§ 877 Wisconsin 1911 Stattttb. 2391 



to be reviewed by, and set aside, modified, or confirmed 
by the board upon application made within one year 
from the time of such compromise. 

Section 2394r-16. Upon the filing with the hoard by 
any party in interest of an application in writing stating 
the general nature of any claim as to which any dispute or 
controversy may have arisen, it shall fix a time for the 
hearing thereof, which shall not be more than forty days 
after the filing of such application. The board shall 
cause notice of such hearing, embracing a general state- 
ment of such claim, to be given to each party interested, 
by service of such notice on him personally or by maiUng 
a copy thereof to him at his last known postoffice ad- 
dress at least ten days before such hearing. Such hear- 
ing may be adjourned from time to time in the discre- 
tion of the board, and hearings may be held at such 
places as the board shall designate. Either party shall 
have the right to be present at any heariag, in person 
or by attorney, or any other agent, and to present such 
testimony as may be pertinent to the controversy before 
the board; but the board may, with or without notice 
to either party, cause testimony to be taken, or an in- 
spection of the premises where the injury occurred to 
be had, or the time books and pay-roll of the employer 
to be examined by any member of the board or any ex- 
aminer appointed by it, and may from time to time di- 
rect any employee claiming compensation to be exam- 
ined by a regular physician; the testimony so taken, and 
the results of any such inspection or examination, to be 
rei)orted to the board for its consideration upon final hear- 
ing. The board, or any member thereof, or any exam- 
iner appointed thereby, shall have power and authority 
to issue subpoenas, to compel the attendance of wit- 
nesses or parties, and the production of books, papers, 
or records, and to administer oaths. Obedience to such 
subpoenas shall be enforced by the circuit court of any 
county. 

Section 2394-17. After final hearing by said hoard, 
it shall make and file (1) its findings upon all the facts 



2392 Masteb and Sbbvant. §877 

inyolved in the controversy, and (2) its award, which 
shall state its determination as to the rights of the par- 
ties. Pending the hearing and determination of any 
controversy before it, the board shall have i>ower to 
order the payment of such, or any part, of the compen- 
sation, which is or may fall due, as to which the party 
from whom the same is claimed does not deny liability 
in good faith within ten days after the giving of notice 
of hearing provided for in the preceding section; and if 
the same shall not be paid as required by such order, 
the facts with respect to the liability therefor, and the 
determination of the board as to the rights of the par- 
ties, shall be embraced in, and constitute a part of, its 
finding and award; and the board shall have the power 
to include in its award, as a penalty for non-compliance 
with any such order, not exceeding twenty-five per cent, 
of each amount which shall not have been paid as di- 
rected thereby. 

Section 2394r-18. Either party may present a cer- 
tified copy of the award to the circuit court for any coim- 
ty, whereupon said court shall, without notice, render 
judgment in oMordance therewith; which judgment, until 
and unless set aside as hereinafter provided, shall have 
the same effect as though duly rendered in an action duly 
tried and determined by said court, and shall, with like 
effect, be entered and docketed. 

Section 2394-19. The findings of fact made by the 
board acting within its powers shall, in the absence of 
fraud, be conclusive; and the award, whether judgment 
has been rendered thereon or not, shall be subject to re- 
view only in the manner and upon the grounds following: 
Within twenty days from the date of the award, any 
party aggrieved thereby may commence, in the circuit 
court for Dane county, an action against the board for 
the review of such award, in which action the adverse 
party shall also be made defendant. In such action a 
complaint, which shall state the grounds ui>on which 
a review is sought, shall be served with the summons. 
Service upon the secretary of the board, or any member 



^877 Wisconsin 1911 Statute. 2393 

of the board, shall be deemed completed service. The 
board shall serve its answer within twenty days after 
the service of the complaint, and, within Uke time, such 
adverse party shall, if he so desires, serve his answer to 
said complaint. With its answer, the board shall make 
return to said court of all documents and papers on file 
in the matter, and of all testimony which may have been 
taken therein, and of its findings and award. Said ac- 
tion may thereupon be brought on for hearing before 
said court upon such record by either party on ten days' 
notice to the other; subject, however, to the provisions 
of law for a change of the place of trial or the calling 
in of another judge. Upon such hearing, the court may 
confirm or set aside such award ; and any judgment which 
may theretofore have been rendered thereon; but the 
same shall be set aside only upon the following grounds: 
1. . That the board acted without or in excess of its 
powers. 

2. That the award was procured by fraud. 

3. That the findings of fact by the board do not sup- 
port the award. 

Section 2394-20. Upon the setting aside of any award 
the court may recommit the controversy and remand the 
record in the case to the board, for fiurther hearing or 
proceedings; or it may enter the proper judgment upon 
the findings, as the nature of the case shall demand. 
An abstract of the judgment entered by the trial court 
upon the review of any award shall be made by the 
clerk thereof upon the docket entry of any judgment 
which may theretofore have been rendered upon such 
award, and transcript of such abstract may thereupon 
be obtained f or hke entry upon the dockets of the coiui» 
of other counties. 

Section 2394-21. Said hoards or any party aggrieved 
by a judgment entered upon the review of any awards may 
appeal therefrom within the time and in the manner pro- 
vided for an appeal from the orders of the circuit court; 
but all such appeals shall be placed on the calendar of 



2394 Masteb and Sebvant. ^877 



the supreme court and brought to a hearing in the same 
manner as state causes on such calendar. 

Section 2394r-22. No fees shall be charged by the 
clerk of any court for the performance of any official 
service required by this act, except for the docketing 
of judgments and for certified copies of transcripts there- 
of. In proceedings to review an award, costs as between 
the parties shall be allowed or not in the discretion of 
the court, but no costs shall be taxed against said board. 
In any action for the review of an award, and upon any 
appeal therein to the supreme court, it shall be the duty 
of the attorney general, personally, or by his assistant, 
to appear on behalf of the board, whether any other 
party defendant shall have appeared or be represented 
in the action or not. Unless previously authorized by 
the board, no lien shall be allowed, nor any contract be 
enforceable, for any contingent attorney's fee for the en- 
forcement or collection of any claim for compensation 
where such contingent fee, inclusive of all taxable attor- 
neys' fees paid or agreed to be paid for the enforcement 
or collection of such claim, exceeds ten per cent, of the 
amoimt at which such claim shall be compromised, or 
of the amount awarded, adjudged, or collected. 

Section 2394-23. No claim for compensation under 
this act shall be assignable before payment, but this 
provision shall not affect the survival thereof; nor shall 
any claim for compensation, or compensation awarded, 
adjudged, or paid, be subject to be taken for the debts of 
the party entitled thereto. 

Section 2394-24. The whole claim for compensation 
for the injury or death of any employee or any award 
or judgment thereon, shall be entitled to a preference 
over the unsecured debts of the employer hereafter con- 
tracted, but this section shall not impair the lien of 
judgment entered upon any award. 

Section 2394-25. The making of a lawful claim 
against an employer for compensation under this act for 
the injury or death of bis employee shall operate as an 
assignment of any cause of action in tort which the em- 



§877 Wisconsin 1911 Statute. 2395 



ployee or his personal representative may have against 
any other party for such injury or death; and such em- 
ployer may enforce in his own name the liability of 
such other party. 

Section 2394-26. Nothing in this act shall affect the 
organization of any mutual or other insurance company^ 
or any existing contract for insurance of employers' 
liability, nor the right of the employer to insure in mutual 
or other companies, in whole or in part, against such liar 
bility, or against the liability for the compensation pro- 
vided for by this act, or to provide by mutual or other 
insurance, or by arrangement with his employees, or 
otherwise, for the payment to such employees, their 
families, dependents, or representatives, of sick, acci- 
dent, or death benefits in addition to the compensation 
provided for by this act. But liability for compensar 
tion imder this act shall not be reduced or affected by 
any insurance, contribution, or other benefit whatso- 
ever, due to or received by the person entitled to such 
compensation, and the person so entitled shall, irrespec- 
tive of any insurance or other contract, have the right 
to recover the same directly from the employer; and in 
addition thereto, the right to enforce in his own name, 
in the manner provided in this act, the liability of any 
insurance company which may, in whole or in part, 
have insured the liability for such compensation; pro- 
vided, however, that payment in whole or in part of 
such compensation by either the employer or the in- 
surance company, shall, to the extent thereof, be a bar 
to recovery against the other of the amount so paid, and 
provided further, that as between the employer and the 
insurance company, payment by either directly to the 
employee, or to the person entitled to compensation, 
shall be subject to the conditions of the insurance con- 
tract between them. 

Section 2394-27. Every contract for the insurance 
of the compensation herein provided for, or against lia- 
bility therefor, shall be deemed to be made subject to 
the provisions of this act, and provisions thereof inoon- 



2396 Mastbb and Sbbvant, §877 



sistent with this act shall be void. No company shall 
enter into any such contract of insurance unless such 
company shall have been approved by the commissioner 
of insurance, as provided by law. For the purposes of 
this act, each employee shall constitute a separate risk 
within the meaning of section 1898d of the statutes. 

Section 2394-28. Any employer against wham liability 
m^y exist for compensation under this act may^ with the 
approval of the industrial accident hoards he relieved there-- 
from by: 

1. Depositing the present value of the total impaid 
compensation for which such liability exists, assimiing 
interest at three per centum per annum, with such trust 
company of this state as shall be designated by the em- 
ployee (or by his dependents, in case of his death, and 
such liabiUty exists in their favor), or in default of such 
designation by him (or them) after ten days' notice in 
writing from the employer, with such trust company 
of this state as shall be designated by the board; or 

2. By the purchase of an annuity^ within the limita- 
tions provided by law, in any insurance company grant- 
ing annuities and licensed in this state, which may be 
designated by the employee, or his dependents, or the 
board, as provided in subsection 1 of this section. 

Section 2394-29. The board shall cause to be printed 
and furnished free of charge to any employer or employee 
such blank forms as it shall deem requisite to facilitate 
or promote the efficient administration of this act; it 
shall provide a proper record book in which shall be en- 
tered and indexed the name of every employer who shall 
file a statement of election imder this act, and the date 
of the filing thereof, and a separate book in which shall 
be entered and indexed the name of every employer who 
shall file his notice of withdrawal of such election, and 
the date of the filing thereof; and books in which shall be 
recorded all orders and awards made by the board; and 
such other books or records as it shall deem required by 
the proi)er and efficient administration of this act; all 
such records to be kept in the office of the board. Upon 



§ 878 Nevada 1911 Statute. 2397 



the filing of a statement of election by an employer to 
become subject to the provisions of this act, the board 
shall forthwith cause notice of the fact to be given to 
his employees, by posting such notice thereof in several 
conspicuous places in the office, shop, or place of busi- 
ness of the employer, or by publishing or in such other 
manner as the board shall deem most effective; and the 
board shall likewise cause notice to be given of the filing 
of any withdrawal of such election; but notwithstand- 
ing the failure to give, or the insufficiency of, any such 
notice, knowledge of all filed statements of election and 
notices of withdrawal of election, and of the time of the 
filing of the same, shall conclusively be imputed to all 
employees. 

Section 2394-30- A sum sufficient to carry out the 
provisions of this act is hereby appropriated out of any 
money in the treasury not otherwise appropriated. 

Section 3. All acts or parts of acts inconsistent with 
this act are to be deemed replaced by this act, and to 
that end are hereby repealed 

Section 2394-31. The legislature intends the contin- 
gency in subdivision 2 of section 2394-1 of this act to be 
a separable part [of said section] and the subdivision like- 
wise separable from the rest of the act, and that part of 
said section 2394-1 that follows subdivision 2, likewise 
separable from the rest of the act; so that any part of 
said subdivision, or the whole, or that part which fol- 
lows said subdivision 2, may fail without affecting any 
other part of the act. 

Section 2. Sections 2394-3 to 2394-32, inclusive, 
shall take effect and be in force from and after the pas- 
sage and publication of this act, and the entire act shall 
be in force from and after September 1st, 1911. 

§ 878. Nevada statute (Laws 1911, c. 183.) 

An Act determining certain employments and indus- 
tries to be especially dangerous, establishing a system 
of compensation for accidents to workmen engaged there- 
in, requiring employers or contractors carrying on such 
industries to pay compensation, entitling injured work- 



2398 Masteb and Sebvant. ^878 



men or their legal representative to receive such com- 
pensation, fixing the amount of same and the manner of 
payment, fixing the time within which claims for com- 
pensation must be made, prescribing the manner and 
method of giving notice to such owner or contractor 
of such accident, providing for the manner of settling 
disputed claims by arbitration, providing for their final 
determination by courts of justice, and granting to 
courts of justice certain additional powers in proceedings 
under this act, determining what persons shall be liable 
under this act. 

Sec. 1. If in any employment to which this act ap- 
plies personal injury disabling a workman from his r^- 
ular services for more than ten days, or death by acci- 
dent, arising out of and in the course of employment is 
caused to a workman, the workman so injured, or in 
case of death, a member of his family, as hereinafter 
defined, shall be entitled to receive from his employer, 
and the said employer shall be liable to pay, the com- 
pensation provided for in this act; provided, that re- 
covery hereunder shall not be barred where such em- 
ployee may have been guilty of contribiUory negligence 
where such contributory negUgence is slight and that of 
the employer is gross in comparison, but in which event 
the compensation may be diminished in proportion to 
the amount of negligence attributable to such employee, 
and it shall be conclusively presumed that such employee 
was not guilty of contributory negUgence in any case 
where the violation of any statute enacted for the safety 
of employees contributed to such employee's injury; 
and it shall not he a defense: (1) That the employee either 
expressly or impliedly assumed the risk of the hazard comr 
plained of; (2) That the injury or death was caused in 
whole or in part by the want of ordinary or reasonable care 
of a fellow-servant. No contract^ rule or regulation shall 
exempt the employer from any of the provisions of the pre- 
ceding section of this act. 

Sec. 2. ** Employer'* includes any body of persons 
corporate or incorporate and the legal personal repre- 



§878 Nbvada 1911 SxAXtrrB. 2399 

sentative of a deceased employer. ** Workman'* includes 
every person who is engaged in an emplo3anent to which 
ibis act applies, whether by way of manual labor or 
otherwise, and wh