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NEGLIGENCE - Continued.

PAGL.
2. The closing of openings through which logs are thrown into the grind.
ing room of a pulp room is a detail of the work which may be committed to a
servant extent of the duty of supervision thereof by the master.] In an action
to recover damages for personal injuries sustained by the plaintiff while
employed in the defendant's paper mill, it appeared that, after the timber,
from which the paper pulp was made, had been sawed into proper lengths
in the saw room of the mill, it was thrown into a bin located in the grind-
ing room of the mill and taken from thence to the grinding machines. The
grinding room was located at the end of the saw room in a pit excavated nine
and a half feet below the floor of the saw room. At the end of the saw
room, next to the grinding room, were two doors. There was also an open-
ing in the floor of the saw room just inside these doors, a foot wide and four
feet long, which opening, when not in use, was ordinarily covered by a plank.

The plaintiff was employed in the grinding room and on the day of the
accident went to work at six o'clock in the evening. At midnight, while he
was stooping over the bin in the grinding room, for the purpose of picking
up a stick of wood, a block of wood came down from above and struck him
on the back, injuring him severely. It did not satisfactorily appear where
the block of wood which struck the plaintiff came from, but he testified
that after receiving the injuries he went up into the saw room and then
discovered that the doors were open.

It was the business of the man who threw the wood from the saw room
into the grinding room to open and close the door, and to remove and replace
the plank in the floor. One of the plaintiff's co-employees testified that
about half-past five or six o'clock on the night of the accident, he went into
the saw room and threw some wood down into the grinding room and that
he did not remember whether he left the doors open or closed. So far as
appeared, this employee was the last person in the saw room (unless the
plaintiff had been there) prior to the accident.

It further appeared that it was the duty of the defendant's superintend-
ent to inspect the mill between four and six o'clock every afternoon, and
he testified that on the day of the accident he performed this duty. He
was unable to state the exact time of his visit to the siw room, but he stated
that, when there, he saw that the doors were closed and that the plank was
in its proper place.

Hild, that the closing of the doors and the replacing of the plank were
mere details of the work which the defendant might properly commit to its
servants, and that if the accident was caused by the failure of the plaintiff's
fellow-servant to perform this duty, the defendant was not responsible;

That the defendant was not guilty of such a failure to perform the duty
of inspection incumbent upon it as would render it liable to the plaintiff;

That the duty of inspection resting upon a master is one which must
be enforced in a reasonable manner and does not require unceasing and
impracticable performance. PEET 0. REMINGTON & Son Pulp & PAPER Co. 101

3. A failure to subject to a pressure test a rubber hose forming part of an
air brake system - it is the neglect of the railroad company, not of the employce
to whom the duty is delegated what inspection is insufficient what facts
as to deterioration of hose, etc., may be considered by the jury proof of the
frequent bursting of the hose does w i make it a risk of the employment.] in an
action brought to recover damages for personal injuries sustained by the
plaintiff, an experienced brakeman employed by the defendant railroad com-
pany, in consequence of the sudden stopping of a moving freight train on
which he was employed, it appeared that the sudden stopping was due to the
breaking of a rubber hose, forming part of the air brake system, which was
attached to one of the freight cars composing the train.

The defendant knew that a hose of this character was likely to burst and
cause a sudden stopping of the train, and that the only efficient way to lessen
the possibility of such an accident was by subjecting the hose to a pressure
test before the train started on its journey. The hose in question was
examined by a car inspector before the train started on its journey, and the
car inspector testified that he found it to be in good condition. The evidence
justified a finding that the hose was defective; that such defect could have
been discovered by the pressure test, and that the hose was not subjected to
that test.

PAGE.

NEGLIGENCE - Continued.

Held, that the jury were justified in finding that the defendant was guilty
of negligence in failing to apply the pressure test to the hose;

That the fact that, by a rule of the defendant railroad company, it was
made the duty of each train crew to inspect the air brake appliances of the
train, did not relieve the defendant from liability, it appearing that the
inspection which the train crew were expected to make of the air brake hose
was confined to a cursory examination thereof, and to listening for the pur-
pose of ascertaining whether any air was escaping from it, and that such an
examination would not disclose the existence of any defect unless the hose
had actually burst before the examination was made;

That evidence that rubber hose deteriorates with age even when not in use;
that the hose in question was from two to three years old, and that the ordi.
nary life of such a hose is from eighteen months to five years, might properly
be considered by the jury in determining whether the defendant was guilty
of negligence in failing to subject the bose in question to the pressure test;

That evidence that the breaking of an air brake hose is an accident of
frequent occurrence upon railroads, and that the plaintiff knew that it was
the custom to carry in the caboose of each train a supply of such hose for use
in case of necessity, did not establish that the bursting of the hose was a
risk of the employment which the plaintiff assumed;

That any negligence on the part of an employee to whom the railroad com-
pany had delegated the duty of inspecting the air hose was the negligence
of the defendant, and not that of a coemployee of the plaintiff.
SMITI v. N. Y., CHICAGO & ST. L. R. R. Co.....

188
4. Injury to a passenger who puts his arm through the glass in a swing
door on an elevated railroad platform while trying to prevent the door from
striking him— proof that such an accident had never before happened degree
of care required of the railroad company.] In an action to recover damages
for personal injuries it appeared that the plaintiff entered a station on the
defendant's elevated railroad, paid his fare and started, for the purpose of
taking a car, to pass through a doorway, which was fitted with two swinging
doors, in the upper half of each of which were two panes of glass, ten
inches wide and three feet long, divided by a wooden cleat. As the plaintiff
approached the doorway a passenger, who had preceded him, permitted one
of the doors to fly back in the plaintiff's face. To prevent the door from
striking him, the plaintiff threw up his arm, which passed through the glass
in the door, cutting him quite seriously.

The door in question was fitted with double-thick glass, which was not
protected in any way. This quality of glass was in general use upon the
defendant's system for panes of the same size as those with which the doors
in question were fitted, and a carpenter in the employ of the defendant,
who was charged with the duty of making the necessary repairs when the
glass panels in the station doors were broken, testified that, during a period
of eight years, he had never heard of an accident like the one which hap-
pened to the plaintiff.

It appeared, however, that for the larger sized glass panels in the station
doors the defendant used plate glass, which is thicker than double-thick glass.

Held, that the case came within the rule that a carrier of passengers
is not bound to foresee and provide against casualties never before known
and not reasonably to be expected, and that his duty is not to be estimated
by what, after an accident, then first appears to be a proper precaution
against a recurrence of it;

That, as a general rule, when an appliance or machine or structure, not
obviously dangerous, has been in daily use for many years and has uni-
formly proved adequate, safe and convenient, its use may be continued
without the imputation of culpable imprudence or carelessness;

That the defendant was only obliged to use ordinary and reasonable care
towards the plaintiff while he was in its station;

That negligence could not be imputed to the defendant because of its
use of double-thick glass instead of plate glass, it not appearing that plate
glass was better for the purpose than the double-thick glass, or that there
was any reason to anticipate that the accident complained of would, in the
ordinary course of events, happen.
FAUNER V. BROOKLYN HEIGHTS R. R. Co....

.... 488

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NEGLIGENCE - Continued.

5. Assumption by an employee of the risk involved in a rule that within
the yard limits a flugman need not be sent back to protect the train from rear
end collisions.] In an action brought to recover damages resulting from the
death of the plaintiff's intestate, it appeared that the intestate was a freight
conductor in the employ of the defendant railroad company, and that before
daylight on the morning of March 6, 1900, he stopped his train, which was
traveling east on track No. 4, on a curve within the defendant's yards at
West Albany; that while the train was stationary and the intestate was
sitting in the caboose thereof, a freight train following on the same track
crashed into the caboose and killed the intestate.

The defendant had a rule wbich imposed upon those in charge of a train
running within the yard limits of West Albany the duty to be on guard for
a train ahead, instead of requiring each train crew to protect its train in the
rear by sending back a flagman. The negligence charged against the defend-
ant was that this rule was ineffective and improper, and the evidence was
sufficient to warrant a finding that this was the case.

It appeared, however, that the rule in question had been in force for many
years and that no injury had resulted therefrom; that the intestate had been
in the railrond business for twenty-six years, during eight of which he
had been employed on the division on which the accident occurred; that he
was entirely familiar with the rule in question, and had repeatedly told his
flagman that it was unnecessary to flag inside the West Albany yard limits
for approaching trains.

Ileld, that the complaint was properly dismissed;

That the intestate must be deemed to have been cognizant of, and to have
assumed the risks incident to, the operation of the rule in question;

That if an employee, with entire appreciation of a given dangerous situ-
ation, chooses to continue in the cmployment, he cuts off any recovery for
injuries suffered because of that particular situation, whether or not the
employer has been remiss in his duty.
FIELD 0. N. Y. CENTRAL & H. R. R. R. Co.....

148
6. The testimony of two disinterested witnesses that they did not hear
an engine bell and of five employees of the railroad company that it was rung
presents a question for the jury as to whether it w118 or was not rung.] Upon
the trial of an action brought to recover damages for personal injuries
sustained by the plaintiff, iu consequence of being run over by a railroad
train operated by the defendant, five witnesses for the defendant swore
positively to the ringing of the bell upon the train as it approached the place
of the accident. All of such witnesses were in the defendant's employ at the
time of the accident, four of them being engaged in the management of the
train. Two witnesses for the plaintiff, neither of whom appeared to have
any interest in the event of the action, swore that they did not hear any
bell rung; that all they heard was the rumbling of the cars. One of such
witnesses was in a position to observe all that took place at the time of the
accident, and had a clear and unobstructed view of the situation, to which
his attention was attracted,

Held, that the testimony of the plaintiff's witnesses justified the court
in submitting to the jury the question whether or not the bell was rung.

Quære, whether the rule laid down in Culhane v. New York Central &
Hudson River Railroad Company (60 N. Y. 133), in the following language,
" as against positive, affirmative evidence by credible witnesses to the ring-
ing of a bell or the sounding of a whistle, there must be something 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," applies to testimony given by servants in behalf of a master charged
with negligence, where the negligence of the master cannot be made out
without imputing carelessness to the servants testifying.

BURKE 0. BROOKLYN WHARF & W. Co......
7. - Failure to make a recess intended to receive an iron column large enough
to receive it - injury to one putting in the column from brick falling from the
wall as a consequence thereof.] In an action brought to recover damages for
personal injuries sustained by the plaintiff through the alleged negligence of

296

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NEGLIGENCE - Coniinued.
the defendants, it appeared that the latter undertook to prepare recesses in a
brick wall, which should be high enough to receive iron columns which the
plaintiff and the iron workers associated with him had been employed to
place in such recesses; that the defendants failed to make one of such
recesses of a sufficient height, and that, in consequence thereof, the top of a
column which the plaintiff and his companions were endeavoring to place in
position, struck the brick work at the top of the recess, causing several bricks
to fall upon and injure the plaintiff.

The plaintiff testified that he thought "everything was safe to go on;" that
the space afforded by the recess looked wide enough and that this was the
reason he went on.

Held, that the questions of the defendants' negligence and of the plaintiff's
freedom from contrii utory negligence were properly submitted to the jury;

That the defendants having undertaken to prepare the recesses, it was
their duty to ascertain the sufficiency of each recess by actual measurement,
if necessary, before the iron workers were called upon to insert the columns
therein;

That it could not be held, as a matter of law, that the plaintiff was guilty
of contributory negligence in assuming that the defendants had made the
recess long enough to receive the columns or in failing to notice that it was
too short, it appearing that the defect of the recess in this respect was not
plainly manifest. NORMAN v. Down......

243
8. Expert testimony as to whether a trench should be braced or sheathed

when an opinion on the precise question the jury is to pass on is aliowable-
a city is not obliged to establish rules respecting the work to be done in its water
department.] In an action brought to recover damages for personal injuries
sustained by the plaintiff while engaged in digging a water trench for a
municipality, in consequence of the caving in of the bank of such trench, it
appeared that the sides of the trench were braced, and the negligence charged
against the defendant was that the trench should have been sheathed rather
than braced.

Witnesses were called to explain and describe the difference between
bracing the walls of a trench and sheathing them, and from the description
thus given it was an easy matter for the jury to determine which of the two
methods was the safer.

Held, that it was error to permit an expert witness to testify that it would
not be safe to work in the trench in question unless it was sheathed;

That an expert witness will be permitted to express an opinion upon the
precise question which the jury is ultimately to determine only when, from
the nature of the case, the facts cannot be stated or described to the jury in
such a manner as to enable them to form an accurate judgment for them-
selves, and that the present case was not of this character;

That it was also error to allow the superintendent of the defendant's
water department to testify, over the defendant's objection, that the water
department had no rules or regulations governing its employees with
reference to the sheathing or shoring of trenches, as it is po part of the duty
of a municipality to formulate and enforce rules respecting the performance
of labor upon its public works. SULLIVAN 0, CITY OF Rome..

107
9. What neglect of a city to keep a sidewalk free from ice requires the
submission of a case to the jury.] In an action brought to recover damages
for personal injuries sustained by the plaintiff in consequence of falling upon
an icy sidewalk in the defendant city on March 22, 1901, it appeared that
the sidewalk, which was ten and a half feet wide, was constructed of planks
running at a grade of one inch to the foot from the street line to the curb
line; that it was icy, slanting, uneven, with hils or hummocks of ice two or
more inches high, upon one of which the plaintiff fell, and that such icy con-
dition had existed practically all winter; that most of the ice had accumu-
lated more than ten days before the accident. There was evidence that some
snow had fallen upon the sidewalk the night before the accident, but the
plaintiff testified that the amount thereof was slight.

The court directed a verdict for the defendant, apparently upon the ground
that there was no proof that the defendant had been negligent.

Held, that this disposition of the case was erroneous and that a new trial
should be granted. KLAUS 0. CITY OF BUFFALO....

221

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NEGLIGENCE Continued.
10. Death of a pedestrian from a collision with a train at a cr

crossing -
a failure to give a signal of the approach of the train requires the submission
to the jury of the question as to the defendant's negligence.) In an action
brought to recover damages resulting from the death of the plaintiff's
intestate, who was run over by one of the defendant's trains at a railroad
crossing in the city of Yonkers, two witnesses, neither of whom appeared to
bear any relation to the parties, testified that they did not hear any whistle
or bell as the train approached the crossing. One of such witnesses testified
that he was standing in a place where he could have heard the whistle or
the bell if it had been blown or rung. The other witness was only three or
four hundred feet from the crossing on which the accident occurred. None
of the witnesses sworn upon the trial testified that the bell was rung or the
whistle sounded.

Held, that the evidence was sufficient to authorize the submission of the
case to the jury upon the question whether the defendant was negligent in
failing to give any signal of the approach of the train.
WESTERVELT v. N. Y. CENTRAL & H. R. R. R. Co.....

316
11. What proof fails to establish the absence of contributory negligence on
the pedestrian's part.] It appeared that there were four tracks at the cross-
ing and that the defendant maintained gates on each side of the crossing
which were ordinarily kept down on Sundays; that the accident occurred on
Sunday morning; that the intestate bent down to pass under the gates, and
when he reached the second track the flagman stationed at the crossing warned
him not to proceed. Notwithstanding such warning, he continued on his way
and crossed the third track and stepped upon the fourth track when he was
struck by a train approaching on that track. The testimony showed that
after the intestate had passed within the gates, he could have seen the train
which struck him for a distance of a quarter of a mile, if he had looked in
that direction.

It also appeared that some cars were standing upon the track in a position
where they would have hidden the approaching train from view at some
points in the intestate's progress across the crossing.

Held, that the evidence was not sufficient to sustain a finding that the
intestate had been free from contributory negligence. Id.

12. Servant engaged in piling iron injured by the collapse of the pile
the master is not liable where the work is negligently done nor because of a
defective light.] A master who directs two of his workmen to pile a quantity
of iron bars is not liable for personal injuries sustained by one of such work.
men in consequence of the pile baving fallen because the work of piling
was improperly done, irrespective of whether the improper piling was the
fault of the injured workman, or of his fellow-workman, or of both of them.

The fact that an electric arc light, which was designed to light the place
where the work of piling was being performed, was defective to the knowl-
edge of the master, and that because of such defect the light went out just
as the workmen were engaged in placing a bar of iron upon the pile, and
just before the pile toppled over, does not establish liability upon the part
of the master, where no evidence is given showing that the defective light,
or the absence of light, was the proximate cause of the falling of the pile.
GRANT v. NATIONAL RAILWAY SPRING Co.....

593
13.

Contributory negligence driving upon a street railway track uith.
out looking back or listening for a car approaching from the rear.] In an action
brought to recover damages for injuries done to the plaintiff's horse, wagon
and harness, in consequence of one of the defendant's cars having run into
the wagon from the rear while the plaintiff's servant was driving it along
the defendant's street car tracks, the evidence tended to show that the acci-
dent took place late at night when it was very dark; that the plaintiff's
servant bad driven on the track for a distance of about 850 feet and that
he did not look back, or, so far as appeared, listen for approaching cars,
although he was familiar with the locality and knew that cars were likely to
approach from the rear.

Held, that a judgment entered upon a verdict in favor of the plaintiff
should be reversed, on the ground that the plaintiff had not affirmatively
proven that his servant was free from contributory negligence.
BELFORD v, BROOKLYN HEIGHTS R. R. Co....

388

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