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gard the infant child of plaintiff went upon the railway track and was killed by a passing engine. Upon demurrer it was held that section 1289 of the code of Iowa of 1873, which provides that if a railway company fails to fence its road against live stock running at large. it shall be liable to the owner of any such stock killed or injured by its trains by reason of the want of such fence, unless the same was occasioned by the wilful act of the owner or his agent, does not make it the duty of the company to fence its road, nor subject it to liability for injury to an infant child while on the track. Walkenhauer v. Chicago, Burlington & Quincy R. Co.,* 3 McC., 553.

§ 342. Stock killed on track while trespassing.—The plaintiff brought suit to recover damages for the loss of a horse alleged to have been killed on defendant's railroad. The evidence showed that the horse of the plaintiff was found maimed and killed on the side of the railroad track. The tracks of the horse appeared on the track of the railroad, indicating that she had run before the train about one hundred yards before she was overtaken by it. The evening before she had been put into a pasture inclosed from the railroad by a fence in which there was a draw-bar opening upon the railroad. The owner had put up these bars the night before, and in the morning it was found they had been let down. The inference from the evidence was that some one had let down the bars in the night; that the horse had come out of the pasture upon the track; and that being on the track, and after running before the train some distance, the horse was caught by the train and fatally injured. As there was no negligence on the part of the company it was held that the horse was on the track in the character of a trespasser, and the defendants were not liable for the accident. Campbell v. Receivers,* 4 Hughes, 170.

§ 343. Liability for injuries to child playing on turn-table.-A railway company is liable for an injury to a child of tender years that went to play on its turn-table, and the railway company cannot set up in defense the negligence of the father of the child in allowing it to go upon the turn-table. Stout v. Railroad Co.,* 11 Am. Law Reg. (N. S.), 227. See SS 318-20.

§ 344. It is the duty of a railway company having a turn-table or other machinery in public places, likely to be frequented by children, to fasten it, or in some way render it so inoperative that children cannot do themselves harm in playing with it. Ibid.

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§ 345. Not liable for injury to person negligently walking on track Children on track. While a railway company is bound to use the highest degree of caution and care as to its passengers, as to trespassers on its track it is only bound to use such care as an ordinarily prudent, careful person would use under the same circumstances. Where a child two years of age was on a railway track, and when seen by the engineer he blew for brakes and tried to stop the train, but could not stop it in time, and the child was run over and killed, held, that the administrator of the child could not recover. The engineer was not negligent in having for a moment taken his eyes from the track to look at the furnace door inside the cab, nor were the receivers negligent in not having the train equipped with the Westinghouse or some other continuous power brake, such brakes being then comparatively new inventions, and the receivers having under consideration a plan for their adoption. Ex parte Snell, In re Atlantic, M. & O. R. R. Case,* 4 Hughes, 157.

§ 346. No man has a right to go upon a railroad track and walk along in a state of abstraction, careless of what might happen to him, and then turn around and say to the railroad company, however negligent they may have been, "You are responsible for my safety.” Finlayson v. Railroad Co.,* 1 Dill., 579.

§ 347. The defendant's road runs parallel to the county road, upon the same general level and about thirty feet from it. The plaintiff's husband had been a laborer upon the public canal in the vicinity. He had left the wagon with his wife to do some business. The wagon passed along, and when he had finished his business he started to overtake the wagon, and went upon the railroad track instead of on the public road. After he had walked some hundred yards or so, a passenger train of defendant's came along at the usual rate of speed, and, approaching him from behind, struck and killed him. The wind was blowing in the face of plaintiff's husband at the time of the accident. The evidence was conflicting as to the distance from the deceased at which the bell was rung. The whistle was sounded and the brakes applied. The injury did not happen at a public crossing, and the defendant's road ran in a straight line for some distance before and behind the deceased. In an action to recover, held, that the company was not liable, and that the engineer had a right to suppose that the deceased was a man of sound mind and good hearing and that he would take reasonable care to protect himself in case of danger. Held, also, that a railroad train must give due notice of its approach when any one is perceived walking on the track ahead of it. Ibid.

§ 348. Not liable for injuries caused by its contractors.- A railway company is not liable to a person injured on a train operated and owned by its contractors. Union Pac. R. Co. v. Hause,* 1 Wyom. T'y, 27.

§ 349. Injury by train in charge of servants of another company.- Defendants, the New Jersey Central Railroad Company, ran a train over the Lehigh Valley Railroad in charge of the agents and servants of that company. This train had run upon defendant's tracks about two hundred yards. The Lehigh Valley conductor then backed it upon a side track preparatory to leaving it with the rest of the servants of the Lehigh Company. In backing it down he moved it too far and too fast, so that it collided with some coal cars standing on the side track, and plaintiff was injured. Held, that the Lehigh Valley Company was alone responsible for the injury, its servants having exclusive charge of the train and track. Clymer v. Railroad Co.,* 5 Blatch., 317.

§ 350. Miscellaneous.— A railway company is liable for negligent injury to a person caused by the carelessness of its engineer, though the train was at the time of the accident running upon the track of another company in charge of a conductor who was the employee of the company that owned the track. Mills v. Railroad Co.,* 1 MacArth., 290.

§ 351. A railway company received a quantity of gunpowder and stored it in a warehouse with other goods, including plaintiff's. A fire broke out which was not subdued owing to the unwillingness of the firemen to expose themselves to the danger of the explosion, and plaintiff's goods were destroyed. Held, that the railway company were liable, the storage of the gunpowder within the city being a nuisance generally, and negligence as to the owners of goods stored with it. White v. Colorado Cent. R. Co., 5 Dill., 432.

§ 352. A petition was filed asking compensation for an injury which the petitioner sustained in consequence of a fall while attempting to get off a train on a railway then operated by a receiver. Held, that controversy as to the position of the receiver, or his liability as such, was unnecessary, as not affecting the rights of the petitioner, in relation to whom he stands in the place of the company. Secor v. Toledo, etc., R. Co.,* 10 Fed. R., 15.

§ 353. A railway company, building a bridge across a river, used certain pontoons, which were sunk by the ice. Held, that it was entitled to a reasonable time in which to remove them, and failing to do so would be liable for any injury which might result from their obstructing navigation on the river. Mo. Riv. Pack. Co. v. Hannibal, etc., R. Co., 1 McC., 281. § 354. Declarations of deceased as to whether she heard the engine bell are admissible. Whiton v. Chicago & N. W. R. R. Co., 2 Biss., 282.

V. MASTER AND SERVANT.

SUMMARY - Liability of employee; fellow-servants; risks of employment, § 355. — Fellow-servants, §§ 356–59.— Defective machinery, § 359.— Negligence of stevedore, § 360.— Knowledge of defects in machinery, § 361.- New and unusual machinery, § 362.—“Foreign car," § 363.- Risks assumed by bridge builder, § 364.— Rights of engineer who reports a defect in his engine, § 365.- Duty to furnish safe machinery; risks of employment, § 366.- Liability for acts of servant, §§ 367, 368.

§ 355. A corporation is chargeable with the negligence of its servants. But one servant assumes the risk of injury by a competent and careful co-servant. An employee also assumes the ordinary risks of his employment. But the master must provide reasonably safe machinery and conduct the business carefully. Kielley v. Belcher S. M. Co., §§ 369-373.

§ 356. Those only are fellow-servants who serve in such capacity and in such relation to the master and to each other that the means of the servants to protect themselves are equal to or greater than those of the master to afford them protection. Ibid.

$357. A master is not liable for injuries happening to a servant caused by the negligence of a fellow-servant. And where the conductor of a railroad train by a violent pull on the bell-rope breaks the glass in the engine cab, by reason of which the engineer is badly frozen, the company is not liable. Dillon v. Union Pacific R. Co., $$ 378-381.

§ 358. Where the superintendent of a machine-shop directed a boy of sixteen to adjust a belt upon rapidly revolving pulleys and shafts, held, that this was outside the scope of the boy's employment and of the risks which he assumed, and that the company employing the superintendent was liable. Railroad Co. v. Fort, § 374.

§ 359. Where a railway management furnishes cars equipped with an old and dangerous coupling apparatus it is liable to an employee injured thereby, although another employee also contributed to the injury. McMahon v. Henning, § 375.

§ 360. Where by negligence a hatchway grating was so insecurely placed that a man fell through and lost his life on a ship, while it was being loaded by a stevedore by contract at so much per ton, held, that neither the ship nor its owner was responsible, the negligence being that of the stevedore and his men. Dwyer v. National Steamship Co., §§ 376, 377. VOL. XXVIII - 13

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§ 361. The plaintiff filed a petition alleging that he was employed as engineer by the defendant, and that by reason of the want of a signal-bell in the cab of his engine he received the injuries complained of. The evidence showed that the defect in the engine had been known to the engineer for some time, yet he voluntarily continued the use of the engine. On demurrer to the petition, held, that the plaintiff had assumed the risk of the defective engine, and the defendant was not liable for the injury. Dillon v. Union Pacific R. Co., S$ 378-381.

§ 362. While an employee assumes certain risks of his employment, his employer is yet liable if without notice to the employee he introduces new and unusual machinery, involving an unexpected or unanticipated danger. O'Neill v. St. Louis, I. M. & S. R. Co., $$ 382-384.

$363. A plaintiff is not bound to aver that the injury for which he sues was occasioned by the introduction into the train of a "foreign car." Ibid.

§ 364. A person in engaging with a railway receiver to work for wages as a bridge builder takes upon himself all the ordinary risks incident to that employment, including the risk of the falling of the bridge at the critical time of adjusting it to its bearings after taking out the false work, during the putting in of the upper braces of the end bent. He also assumes risk of all accidents incident to such work arising from the temporary oversight or mismanagement of his co-workman, the experienced and skilful foreman who labors with him and superintends the job, and in the absence of negligence such person cannot recover for an injury by the bridge falling. Yager v. The Receivers, SS 385-387.

§ 365. An engineer who knows a defect in his engine and reports it to the master-mechanic with a complaint, and is promised that it shall be repaired, is not guilty of contributory negligence if he uses the engine a reasonable time thereafter while waiting for the master-mechanic to have it repaired. Hough v. Railway Co., §§ 388-393.

$366. The general rule is that a person who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly. This includes the risks and perils arising from the negligence of co-servants. But a master must provide reasonably adequate and safe machinery to use, and competent co-servants. He will be liable if he does not do this. He is also liable for the negligence of his representatives, who are his vice-principals rather than co-servants of the employee injured. But the master does not guaranty the absolute safety of machinery, or insure the absolute carefulness of his employees. He is only bound to a reasonable duty in these regards. Ibid.

§ 367. Action against servant of a stage line for negligently permitting plaintiff's slave to take passage, thereby escaping. The clerks in the stage office were instructed by their employers to allow all colored persons bearing certificates of freedom to travel by their line. The slave presented a false certificate, the name and description therein being of another perThe stage-office keeper is charged with negligence in not more carefully examining the certificate. Held, that the stage-office keeper had been guilty of negligence, but that his employers, not he, were liable. Mandeville v. Cookendorfer, § 394.

son.

§ 368. A passenger on a steamboat going to a place to which the fare was fifty cents offered the clerk a dollar bill for a ticket. The clerk could not make the change even in postage stamps, which plaintiff was willing to take, but suggested that the passenger take two tickets. This the passenger refused, saying that he did not care to buy tickets "in advance," and went away. Subsequently, when the man came around to collect tickets of passengers, plaintiff refused to pay, saying he had once offered to do so and that the clerk had refused it, whereupon the clerk assulted him. Held, that the assault was actionable against the owners of the boat. Pendleton v. Kinsley, §§ 395–398. [NOTES.

See §§ 399-469.]

KIELLEY v. BELCHER SILVER MINING COMPANY.

(Circuit Court for Nevada: 3 Sawyer, 437-445. 1875.)

STATEMENT OF FACTS.- Action for damages for injuries sustained by plaintiff, an employee of defendant, while engaged in their service, from the negli gence of his fellow-servant, a blast being exploded in a mine without proper notice, by means of which plaintiff was greatly injured. There was a demurrer to the complaint.

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$369. Liability of a corporation for torts of its agents.

Opinion by HILLYER, J.

That the defendant, as a corporation carrying on the business of mining, is liable for torts is well settled. Fowle v. Com. Coun., 3 Pet., 490. And since, as such corporation, it can act by means of agents or servants only, it follows that it is liable to third persons for the tortious acts of its agents and servants. But the servants of a corporation are no more and no less than the servants of a natural person, and in both cases whatever is negligently done or omitted. is, as to the public, the employer's act. 14 How., 468. It is also established law that a master is responsible to his servant for an injury caused by his (the master's) own negligent act. If, then, a corporation can, as master, be directly guilty of a tortious act to the injury of its servant, it is good pleading to charge the injury, as the plaintiff has done in this case, to be the result of the negligence of the corporation itself, and this consideration might dispose of the demurrer adversely to the defendant. But the argument for the defendant, as we understand it, goes further and asserts that the defendant, being a corporation, and incapable of acting except through the agency of servants, the complaint shows upon its face, sufficiently, that the negligence was that of a fellow-servant, for which the plaintiff has no remedy, in accordance with what is stated to be the settled rule of law in this country and in England, namely, that a master is not liable to his servant for the negligence of a fellow-servant while engaged in the same common employment, unless he has been negligent in his selection of the servant in fault. Shearman & Redfield on Negligence, 101, sec. 86.

$370. The rule of respondeat superior. Injury of one servant by another an exception.

The doctrine of law which holds a master responsible for the acts of his servants is embodied in the maxims, qui facit per alium, facit per se, and respondeat superior, the former being generally applied in matters of contract, the latter in matters of tort. The maxim respondeat superior proceeds upon the principle that the wrongful act of the servant, done in the course of his employment, is in contemplation of law the act of the master himself. And the principle is founded upon public policy and convenience. The master chooses his servant and directs and controls him in his work. It is the master who is doing the work through the instrumentality of a servant. There is obvious justice in holding him responsible for injuries done by his servants while so engaged, otherwise the master might carry on the most hazardous enterprises through the medium of careless and practically irresponsible servants, without liability for injuries caused by such servants to third persons, and so these latter be left virtually without redress. The master the real cause of the injury in such cases would so be allowed to take advantage of his own wrong, in violation of another legal principle. The maxim, then, which permits the injured party to obtain redress from the real author of the wrongful act is founded in wisdom. This is the plain and undoubted rule of law when the injury is received by a stranger. When, however, the injury is done by one fellow-servant to another, an exception to the general operation of the maxim has been made. It is upon this exception that the defendant relies to defeat plaintiff's action.

This exception is firmly established in England, and in the United States the general, though not universal, current of authority is with the English courts. Whether the rule as quoted above, embracing this exception, is law

to the extent claimed is a question new in this court, and one which has never been directly passed upon by the supreme court of the United States. But the language of the latter court in two recent cases shows plainly that the rule is considered open for argument, consideration and possible qualification. Packet Company v. McCue, 17 Wall., 508; Railroad Company v. Fort, 17 id., 553 (§ 374, infra). In the case of Fort, the court, speaking on the general proposition embraced in the rule, said: Whether it be true or not we do not propose to consider, because, if true, it has no application to this case. Yet the case was one in which a youth of sixteen, being employed in a machineshop of the company, lost his arm while obeying a direction of Collet, under whose superintendence he was, to ascend a ladder and adjust a belt. Indeed, this case cannot be reconciled with the more extreme English and American cases, and must be considered as in some degree a modification of the rule relied upon by the defendant, which exempts the master, though the servants are employed in different branches of the common business or are of different grades, the servant injured being under the authority of the one causing the injury. The highest courts of Ohio, Kentucky and Wisconsin have either rejected this rule entirely, or modified it so as to exclude from its operation cases where the servants are in different departments of the common business, or the servant causing the injury is in authority over the injured servant. Railroad Company v. Keary, 3 Ohio St., 201; Railroad Company v. Denning, 17 Ohio St., 197; Railroad Company v. Collins, 2 Duvall, 114; Chamberlain v. Railroad Company, 11 Wis., 238. In Dixon v. Rankens the court of session of Scotland wholly denied the rule as entirely unreconcilable with legal reason. 1 Am. Railway Cases, 569. In Pennsylvania two of the five judges, and in South Carolina three of the ten judges, dissent from the leading decision affirming this rule. Ryan v. Railroad Company, 11 Harris, 384; Murray v. Railroad Company, 1 McMullan, 387.

In a case decided in 1867 the supreme court of Connecticut, while accepting the rule upon the authority of former adjudications, use this language in reference to the policy upon which it is said to be founded: "With respect to considerations of policy, it is by no means certain that the public interest would not be subserved by holding the superior, with his higher intelligence, his surer means of information, and his power of selecting, directing and discharging subordinates, to the strictest accountability for their misconduct in his service, whoever may be the sufferer by it. A principal is responsible to an employee for his own negligence; why should he not be liable for that of his agent, over whom the employee has no control and of whom he may have no knowledge." Burke v. Railway Company, 34 Conn., 474. See, also, Walter v. Railroad Company, 2 H. & C., 111, in note.

In the present state of judicial decision inquiry may, without presumption, be made whether and how far the rule is or is not true; especially when we remember that it is of recent originis, in fact, an exception ingrafted upon an ancient maxim of the common law, from considerations of public policy and convenience, as the rule best calculated to protect the rights and secure the safety of all between whom the social relation of master and servant exists.

§ 371. An employee takes upon himself the ordinary perils incident to his business.

On looking into the decisions which support the rule we find they proceed upon the theory that there is an implied condition in every contract of service

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