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proper care, proportioned to the danger in keeping such machinery in a safe condition. Jones . Yaeger, * 16 Int. Rev. Rec., 142; 2 Dill., 64,
$ 420. A stevedore contracted with the steamsbip R. to discharge her cargo of speigel iron. The libelant was in the employ of the stevedore. They used a derrick in discharging her cargo. The libelant was assisting in hoisting tubs of speigel iron when the chain parted and the loaded tub fell back and injured the libelant. Held, that the averment in the answer that he and those working with him were co-servants of the respondent was a mistake, there being no privity of contract between the libelant and respondent; that if the degree of negligence which would be sufficient to make the respondent liable as employer were enough, the testimony does not show such negligence. It must be shown that the defect was known to the employer, or should have been discovered by him. It was shown that the defective chain was examined with ordinary care before being used, and was apparently strong enough for the purpose intended, and that the defect was neither known to nor discovered by the respondent by the exercise of such care. The Rheola, * 9 Fed. R., 781.
$ 421. The plaintiff's husband was employed in the capaciiy of a fireman in the mill of the defendant. The boiler exploded, causing his death. The statute of Missouri provided that, " Whenever the death of a person shall have been caused by the wrongful act, neglect or default of another, he shall be liable to an action for damages.” The plaintiff brought action for damages under this statute for the death of her husband. Held, that if the employer knows that his boilers are defective, or if under all circumstances, as a reasonable man, he should have discovered, though he did not, their defective condition, or if he negligently remained ignorant of their defective condition, or if the defective condition thereof was the direct and proximate cause of an explosion which injured servants who are blameless and who did not contribute towards the production of the accident by their own fault or neglect, then the employer is liable to such servants. If the jury find that the explosion was due to the default or negligence of the engineer in not ascertaining that he had sufficient water in the boilers, he at the time acting in the scope of his employment and in the general line of his duty, without any special directions of the defendant, and that it was not owing to the defective character of the machinery or boilers, then the defendant is not liable. The plaintiff's husband would be a fellow-servant in the same common employment, and the master, or common employer, would not be answerable to the fireman for negligence of this character on the part of the engineer, there being neither allegation nor evidence that the master was guilty of negligence in employing or retaining in his service an engineer who was incompetent. Jones v. Yeager, * 2 Dill., 64.
$ 422. A contract between an employer and an employee, whereby the latter agrees to release the former from all damages arising from negligence of the employer or co-servants, is against public policy and is void. Roesner v. Hermann, 8 Fed. R., 782.
$ 423. who liable as master.- The boiler of the steamer Bonnie Lee exploded, causing the death of Jefferson B. Posey, second clerk of the boat. The explosion was caused by a defect in the boiler. Action was brought by his widow to recover pecuniary compensation for his loss, and a judgment was recovered in the district court against the Red River Transportation Company, charterers of the craft. This company claimed that, although they were running the boat in their own interests, the liability for negligence in the management of the boat rested upon Noah Scoville, its real owner, who appointed its officers. Held, that the transportation company were the owners pro hac vice, and responsible for the negligence, and that the fact that Scoville appointed the officers was immaterial. Posey v. Scoville, * 10 Fed. R., 140. $ 424.
notice of defects, effect of — When required to bind master.– A master is liable to a servant for an injury caused by a defective draw-bar in the coupling apparatus of a car, where the yard master, whose duty it was to see to the remedy of the defect, was notified of it and promised to remedy it, and the servant, relying upon this promise, continued at work and sustained an injury, within such a period of time after the promise as it would be reasonable to allow for the performance of the promise. Pasody v. Milwaukee, etc., R. Co., * 29 Int. Rev. Rec., 101.
$425. A master is not liable to a servant injured by defective machinery unless the master knew it was defective and neglected to repair it, or neglected properly to inspect it. Haugh v. Tex. & Pac. R. Co., * 3 N. Y. Weekly Dig., 174.
S 426. If a particular structure is without fault as to plan, mode of consiruction and character of material, so that it was originally sufficient for all the purposes for which it was designed, and if the railway company has it afterward properly inspected by competent and skilful men, who exercise ordinary diligence to keep it in repair, the company has discharged its duty and is not liable to an employee for an injury received by reason of a defect in said structure, unless it be shown that the company failed to remedy the defect after having received actual notice thereof. Goheen v. Texas, etc., R. Co.,* 3 Cent. L. J., 392.
$ 427. In an action for damages against his employer by a workman for injuries sustained by reason of a defective and insecure platform which had been provided for him, the complaint omitted any express allegation of a knowledge of such defect on the part of defendant. A demurrer was filed to such complaint. Held, that knowledge of defect of machinery, etc.. on the part of defendant may be shown under a general allegation of negligence.
Knaresborough v. Belcher S. M. Co., * 3 Saw., 446.
$ 428. The plaintiff sued for injuries alleged to have been received by him by reason of the neglect of the defendant in using a defective car. He admitted that he knew of the defect alleged to exist, but averred that before the accident happened the car inspector, whose business it was to report the defect to the master-mechanic, was duly notified of the same, as was also the master-mechanic, and they both failed and neglected to have said defective car retired or repaired; and also that the master-mechanic was advised of the habitual negligence and general bad habits of the car inspector. Defendant demurred to plaintiff's declaration. Held, on demurrer, (1) that there should be an averment that the car was defective when placed upon the road, or, if it subsequently became defective, that notice of the defect be brought home to the company. (2) That a railroad company is not responsible to its employee for the negligence of his fellow-servant. (3) That notice of the habitual negligence and general bad habits of a car inspector, brought home to the master-mechanic of a railroad company liable for an injury to another servant of the company, will not make the company liable for an in. jury to another servant of the company, resulting from the negligence of the car inspector, unless it is shown that power was conferred by the company upon the master-mechanic to employ and discharge the car inspector. Kidwell v. Houston & G. N. R’y Co.,* 3 Woods, 313.
$ 429. Master's duty to inform servant of dangers — New machinery.- It is negligence in the master not to inform his servant of facts within his knowledge affecting the safety of the 'servant in the service to be performed, when the latter is ignorant of such facts. Ac. cordinuly, where a servant was injured by pouring or spilling hot slag in water, held, negligence on the part of the master not to have informed the former of the explosive power of hot slag in water; and that the mister was liable for injuries resulting to the servant by reason of his ignorance of such explosive power. M'Gowan v. La Plata Mining & Smelting Co., 9 Fed. R., 861; 3 McC., 393; 13 Rep., 291; 28 Int. Rev. Rec., 73.
§ 430. If an employer introduces, without notice to his employee, some new and unusual machinery involving an unexpected or unanticipated danger, through the introduction of which the employee, while using the care and diligence incident to his employment, meets with an accident, he is liable in damages to the employee thus injured. O'Neil v. St. Louis, Iron Mountain, etc., R’y Co., 9 Fed. R., 337.
§ 431. Liability of master to servant for injury caused by negligence of fellow-servant.No recovery can be had for an injury to a serrant which is the result of the negligence of a fellow-servant. Gravelle v. Minneapolis, etc., R. Co., * 3 McC., 52; Maryland v. Balt. & Pot. R. Co., * 1 Hughes, 337; Kelley v. Belcher S. M. Co.,* 3 Saw., 500.
§ 432. An instruction, in substance, that if a co-servant was negligent and the company defen: ant was itself negligent in employing him, then the latter was liable for the injury thereby inflicted and could not defend on the ground that the risk of injury by a co-servant was assuind by the plaintiff, held correct. Grand Trunk R. Co. v. Cummings, * 16 Otto, 700.
$ 433. Where an engine broke through the closed doors of a railway shop and injured plaiutiff, held, that the jury were to determine (1) the fact and nature of the injury; (2) whether the engin er and plaintiff were co-servants; if so, then defendant was not liable, the risk of injury by a co-servant having been assumed by plaintiff as well as the risk of injury by defective machinery. Totten v. Peopsylvania R. Co.,* 11 Fed. R., 564.
$ 434. Plaintiff was employed to walk in front of trains going through a city and carry a red flag to warn people that the train was coming. One day a train ran him down. Held, that his injury was due to the negligence of a co-servant, the engineer in charge of the locomotive, and that he could not recover. Per Olin, J.: that he was guilty of gross contributory negligence in going upon the track at all in front of the engine. Mills v. Railroad Company, * 2 MacArth., 321.
$ 4:5. A brakeman who is injured while coupling cars, through the negligence of the engineer in backing the engine carelessly and without warning, cannot recover, the injury being done by a co-servant. Summerbays v. Kan. Pac. R. Co.* 2 Colo. T'y, 484.
$ 436. A railway company is not liable for injuries suffered by one employee solely through the carelessness or negligence of another employee of the same master, engaged io the same general service or business, or under the same general control. Haugh v. Texas, etc., R. Co.,* 8 Cent. L. J., 447.
& 437. Each employee engaged with others in the service of a common master takes upon himself the liability to injury resulting from the negligence of his co-employees. Ibid. $ 438. To justify a recovery against a master by one servant for an injury caused by the
negligence of a fellow-servant, it must be shown that the servant by whom the injury was caused was incompetent, and that the master was guilty of wilful negligence in employing him. Jordan v. Wells,* 3 Woods, 527.
$ 439. A corporation is bound by the acts of its agents and servants, and is liable for their negligence in the performance of the duties it imposes upon them. But if a corporation enploys several agents as fellow-servants in the same common employment, and one of those servants is injured by the neglect or wrong of another, the corporation is not liable unless it be that the servant who is guilty of the wrong or the negligence was employed by the company with knowledge that he was incompetent or negligent, or was continuel in service by the company after notice of the fact that he was incompetent or negligent. Ross v. Chicago, M. & St. P. R. Co.,* 2 McC., 235.
$ 440. The plaintiff was in the service of defendant, engaged in removing slag.pots from the defendant's furnaces, to be emptied outside of the furnace building. Through the carelessness of another person, also employed by the defendant to assist in removing these pots, one of the pots was left in a place where it obstructed the passage-way, and the plaintiff moving backwards, drawing a slag-pot without the building, fell upon this, and the slag-pot which be was attempting to remove was overturned in such a way that it injured his person, Held, that in an action for damages plaintiff must aver that he himself exercised due care and caution at the time of the accident, and that he was not informed and had no knowledge of the character of the person who was employed with him or of his capacity and fitness for the work, Dunmead v. American Mining, etc., Co.,* 12 Fed. R., 847, 843.
$ 441. — who deemed fellow-servant.— It seems that the owners of a steam-vessel are liable to a fireman on board such vessel for injuries sustained by reason of the negligence of the master, the master and fireman not being considered fellow-servants of a common employer. The Clatsop Chief, 27 Int. Rev. Rec., 329; 7 Saw., 274.
$ 442. A car inspector is not a fellow-servant with a brakeman in such a sense as to relieve the railroad company from liability for damages resulting to the brakeman from defects in the coupling apparatus, wbich, through the negligence of the inspector, had been allowed to continue, even supposing that a railroad company cannot be held liable for injuries to an employee resulting from the negligence of a co-employee. King v, Ohio, etc., R. Co.,* 15 Cent. L. J., 367.
$ 443. If, by reason of the failure of a porter or deck-hand to hang up a light or close the hatch, the plaintiff, who was employed to remove cargo, was injured, it is but the negligence of a fellow.servant in and about a common business, for which the employer is not liable. The employees must be deemed to have entered upon the service with the understanding that they take the chances of the neglect or carelessness of any or all others who are engaged in the common employment and occupation of loading, unloading or running the boat. Malone v. Transportation Co.,* 5 Biss., 315.
S 114. If an employer use due care in the selection of competent servants he is not liable for injuries to one of his servants resulting from the negligence of a fellow-servant in the same line or department of employment. A servant engaged in operating an engine employed in lowering workmen and material into a shaft is a fellow-servant in the same line of
mploment with others working in the shaft, within the above rule. Buckley v. Gould & Curry Silver Mining Co., 15 Rep., 133; 8 Saw., 394.
$ 415. All agents and employees on a railroad engaged on the same general employment or business of keeping up, ruvning or operating the road are fellow-servants. Master-mechanics, foremen of round-houses, and other persons engaged in the repair of machinery and rollingstock are fellow-servants with engineers, conductors and other persons engaged in running trains. Haugh v. Texas & Pacific R. Co.,* 3 Cent. L. J., 447.
$ 446. Fellow-servants, within the meaning of the law, are such as are employed in the same service and subject to the same general control. But if a railroad company sees fit to invest one of its servants with control or superior authority over another, with respect to any particular part of its business, the two are not, with respect to such business, fellow-servants within the meaning of the law. One is in such case subordinate to the other, and the superior stands in place of the corporation. Gravelle v. Minneapolis, etc., R. Co., 11 Fed. R., 569; 3 McC., 352.
$ 447. A laborer in a railway yard and the assistant yard master are not fellow-servants if the former is subordinate to, and under control of, the latter. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.
$448. Where a seaman is injured through the negligence of the mate in rigging a triangle on which libelant was working, the owner is not liable where no negligence is shown on his part.
Halverson v. Nisen,* 3 Saw., 562. $ 419. Fellow-servants are those who are engaged in the same general control of the party injured. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.
$ 450. A rule of a railway company requiring railway conductors to show their telegraphic orders to engineers makes the latter subordinate and inferior to the former, and hence they are pot co-servants within the rule exempting employers from liability for the injury of one by the other. Ross v. Chicago, etc., R. Co., 8 Fed. R., 544.
$ 451. If an employer sees fit to place one of his employees under the control of another, the latter is a vice-principal or representative of the company, and the two are vot co-servants, assuming the risk of each other's negligence. Ibid.
$ 452. A common laborer in a mine and miners therein are not co-servants where they are employed in different departments of work, have no authority over each other, nor any opportunity of observing or influencing each other's conduct, or of guarding themselves by their own care or prudence. Kieley v. Belcher S. M. Co., 1 Rep., 13. See :$ 369-73.
$ 453. A minor, sixteen years of age, was ordered by his superintendent to ascend twenty feet among some shafting and wheels, and there to adjust a belt. In doing this he was injured. Held, that, considering the age and inexperience of the minor, the dangerous character of the service, the injury was due to the negligent and wrongful command of the superintendent; that his negligence would not be considered that of a co-servant of the injured boy, but would be imputed to the master. Fort v. Union Pacific R. Co., * 2 Dill., 259. See
$ 454. A boy employed in a railway shop was directed by the foreman thereof to ascend a ladder and hold a belt near a revolving shaft while the foreman below laced it.
The boy's arm caught in the revolving wheel and was torn off. Held, if the work the boy was ordered to do was not within the contract of service, was not one of the duties which fell within the contract of employment, but was outside of it, then the foreman in ordering the service in question (if he was in the scope and course of his duties and power at the time) must, as to this act, be taken to represent the company, his employer (which he is presumed constructively to represent), and, if that act was wrongful and negligent, the company, his employer, would be liable for the damages caused by such negligent and wrongful act; and the principle that the master is not liable for the neglect of a co-servant in the same service has no application, for in such a case they are not in any proper sense" fellow-servants” in the same common service. Frost v. Union Pac. R. Co.,* 11 Am. L. Reg. (N. S.), 101.
§ 456. A miner engaged in digging and blasting ore is the co-servant of a miner engaged in wheeling it away in a barrow, and if the latter is injured by the negligence of the former in failing to give notice of a blast the employer is not liable. Kelley v. Belcher S. M. Co.,* 3 Saw., 600.
$ 456. Where one servant is placed in the control of another the two are not co-servants. Ross v. Chicago, Milwaukee & St. Paul R. Co., 2 McC., 235.
$ 457. In respect to the showing and delivery of orders to the engineer of a train, the conductor is not his co-servant, but is the vice-principal or representative of the company. Ibid.
$ 458. A laborer was injured while employed as a stevedore in shifting coal between decks. of a steamship. The injury was caused by falling into the lower hold through a hatchway negligently left open by other persons employed on board in discharging cargo. He brought suit against the vessel to recover damages for his injuries. Held, that discussion as to the correctness of an action against the vessel was unnecessary, as the action could not be main. tained against the vessel unless it could be maintained against the owner. That the owners were not responsible for the accident, as the persons through whose negligence the hatchway was left open were fellow-servants engaged in the same general employment of the owners. Cuillard v. Steamship Victoria, * 4 Fed. R., 159. See Halverson v. Nisen, 3 Saw., 562; Malone v. Western Transportation Co.,* 5 Biss., 315.
$ 459. Notice of fellow-servant's incompetency – Effect of — When necessary to hold master liable.- Before a master can be rendered liable to a servant injured by a co-servant, it must not only be shown that the injury arose from the co-servant's negligence, but that he was an incompetent or unskilful servant, and that the master, knowing this, retained him in his employ. Haugh v. Texas, etc., R. Co.,* 3 Cent. L. J., 447; 3 N. Y. Weekly Dig., 174.
$ 460. To sustain an action against a master for damages sustained by reason of the negligence of a fellow-servant, the plaintiff must show that the injury was not caused by his own want of care and caution, and that he had no knowledge of the unfitness of his fellow-servant. Dunmead v. American Mining & Smelting Co.,* 14 Rep., 419.
$ 461. The law presumes that railway companies employ for their service persons of reasonable competency and fitness for their duties; and this presumption exists until the company is notified of their incompetency and unfitness. The same rule substantially applies to the question of the sufficiency of the machinery employed. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.
S 462. If one employee of a railway company discovers that a co-employee of his is negligent or incompetent, it is his duty to give notice to the company; but it is not necessary, in
order to relieve himself of contributory negligence, that he should at once quit the service of the company. He may wait a reasonable time for the discharge of the incompetent servant. Ross v. Chicago, etc., R. Co.,* 8 Fed. R., 544; 2 McC., 235.
$ 463. If a corporation employs several agents as fellow-servants in the same common employment and one of those servants is injured by the neglect or wrong of another, the corporation is not liable unless it be that the servant who is guilty of the wrong or negligence was employed by the company with knowledge that he was incompetent or negligent, or was continued in service by the company after notice of the fact that he was incompetent or negligent. Ibid.
$ 464. After notice of the incompetence of a servant, a railway company retaining him in its service assumes the responsibility for his negligence, and cannot exonerate itself by showing that it investigated the charges against him and did not believe them. Ibid.
$ 465. An employee who fails to notify his employer of the incompetence or carelessness of a co-servant or of a defect in machinery or apparatus takes the risk of in jury thereby. Ibid. $ 466.
servant injured ontside of the scope of his employment.— A boy sixteen years of age was employed in the defendants' machine-shop as a workman under the super. intendence and control of one C. His services consisted in receiving and putting away mouldings. After a few months' employment of this kind he was ordered by C. to ascend a ladder resting on a shaft, to a great height from the floor, among dangerous machinery revolving at the rate of one hundred and seventy-five revolutions per minute, to adjust a belt which had got out of place. While attempting to execute the order his arm was caught by the machinery and torn from his body. The jury found by special verdict that he had been engaged to serve under C. and obey his orders; that the duty assigned by the order of C. was not within the scope of his employment, but within that of C.; that the order was an unreasonable one, attended with hazard to life or limb. Held, that the defendants were liable for the injuries sustained; that, having intrusted to C. the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. Union Pacific R. Co. v. Fort, 17 Wall., 553; 6 Ch. Leg. N., 150. See $ 453.
$ 467. A master is not liable to his servant or employee for the negligence of a fellow-servant, while engaged in the same common employment or service, unless he has been negligent in the selection of the servant at fault, or in retaining him in his employ after notice of his incompetence has been brought to him as employer. But this rule does not exempt the master from liability for injuries caused by a co-servant outside the scope of the injured servant's employment or duties. Frost v. Union Pac. R. Co.,* 11 Am. Law Reg. (N. S.), 101.
$ 468. Termination of employment.-- The time when an employee stops working is a question determinable by the jury, not by the court, in a case where the employer's liability to him for an injury is in controversy. Packet Co. v. McCue, * 17 Wall., 508.
$ 469. When accident deemed result of master's carelessness and when of fellow-servant's.- Where a company does not affix extra links to the tender of an engine, but leaves them scattered around the switching yard to be used as needed by employees, if there be any negligence in not affixing such links to the tender, it is the negligence of the company, not of its employees, who are co-servants of the person injured. Gravelle v. Minneapolis, etc., R. Co., 11 Fed. R., 569.
SUMMARY – Publication after commencement of suit, $ 470.- Exemplary damages, $ 471.
Corporation liable for acts of agent, $ 472; liable for libel on one of its officers, S 473.What amounts to a libel, ss 474, 479, 482.- Malice presumed, § 475.- Justification, how pleaded, 476. - Variance in proof, $ 477.- Case or defense made out by the proof, when, $ 478.- Mercantile agency; privileged communications, SS 450, 481. — Publication injurious to business, 8 482.- Privileged communications, ss 483, 484, 489, 490.– Duty of jury, S 485.— Malice; proof; damages, $ 486.- Right to discuss public questions, S 487.- Charges against a public officer, § 488. — Publication of court proceedings, etc., $ 491.- Proof of other libelous publications, S 492.— Words may be defined in charge to jury, 493.— Measure of damages, $ 494.
$ 470. Publication after commencement of a suit for libel is not enough to sustain a verdict in that suit. Phila., Mil. & Balt. R. Co. v. Quigley, SS 495-499.
$ 471. Exemplary damages in suit for libel are not recoverable unless the libel was conceived for a mischievous or malicious purpose. Ibid.