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§ 3. Risks assumed by servant.

Plaintiff was employed on the third floor of defendant's packing house,
which was reached by an outside stairway running up from a platform,
10 to 14 feet wide, extending along the side of the building. This plat-
form was used by other employés in conveying meat on trucks from one
part of the building to another, and there were more or less drippings
from the trucks which in cold weather froze upon the platform. After
plaintiff had been so employed for three years, in walking along the plat-
form from the stairway in going from work one night in the winter, be
slipped on the platform, and was injured. Held that, assuming that the
fall was caused by ice resulting from such drippings, it was not due to any
neglect or breach of duty on the part of defendant, but to a cause the
risk from which was known to and assumed by plaintiff.

--Omaha Packing Co. v. Sanduski, 155 Fed. 897.......84 C. C. A. 89
The rule which makes it the positive duty of a master to exercise rea-
sonable care to provide a servant with a reasonably safe place in which to
work, even if it extends to providing a reasonably safe mode of entrance
to and exit from the place where the workmen are employed, is not ap-
plicable to a case where the place becomes dangerous in the progress of
the work either necessarily or from the manner in which the work is done.

-Omaha Packing Co. v. Sanduski, 155 Fed. 897.......84 C. C. A. 89
A servant engaged in operating a machine by standing at its side, in-
stead of behind it, where its construction contemplated that the operator
should stand, did not thereby assume the risk of injury from the break-
ing of a belt which was greater there than at the rear of the machine,
where there was no obvious danger in the position taken, and in fact no
danger at all if the appliances were sound, while the position behind the
machine was obviously dangerous from other causes, and it was cus-
tomary for all operators to stand at the side.

--Northern Pac. Ry. Co. v. Wendel, 130 Fed. 336.....84 C. C. A. 232
A workman, who was injured by the breaking of a belt used to run a
machine, due to its weakness from age and from a recent splicing, al-
though he had operated the machine for some years, cannot be held to
have assumed the risk from such danger, where it is not shown that he
knew the age of the belt, or what the life of such a belt was, or that
the splicing would increase its tendency to break.

- Northern Pac. Ry. Co. v. Wendel, 156 Fed. 336.....84 C. C. A. 232
A lineman, engaged with others in removing wires from poles, who
was injured by the falling of a pole on which he was at work, caused by
its being rotten beneath the sidewalk in which it was planted, cannot
be held to have assumed the risk from such danger under the circum-
stances explained.
-Munroe v. Fred T. Ley & Co., 156 Fed. 468; Same v. Edison Eler-

tric Illuminating Co. of Boston, Id...... ....84 C. C. A. 278
A drillman in a mine where it was the usual known custom to move
the drills by hand up stopes having a practicable grade assumed the
risk of injury from such manner of doing the work, and cannot recover
from the owner for an injury so received, and he was not relieved from
such assumption by a complaint made to the ground foreman of such
method and a promise on his part to secure appliances, where he had
no authority to do so, either actual or apparent, and whose only duty was
to report the complaint to the superintendent, under whose direction all
the work was conducted, which he failed to do.

-United Zinc Companies v. Wright, 156 Fed. 571...84 C. C. A. 337
The plaintiff, an experienced boilermaker's helper, was sent to punch
some holes in a piece of galvanized iron with a power punch. The die,
a piece of tempered steel 21., inches in diameter with a suitable hole in
it, lay in a depression in the block so that the punch struck the hole in it
true when he went to do his work. This die had been fastened in its
place by a set screw which extended through the side of the block and
into the die, but this screw had been broken for more than a month, so

that the die was loose and there was danger that the punch would raise it
from its position and displace it so that the punch would strike the solid
steel of the die and injure the operator. The break in the screw and the
looseness of the die were not readily observable, and the plaintiff was not
aware of them. After he had punched several holes in the iron, and as he
was making another, something struck his eye and put it out. After the
accident there was a piece broken off of the point of the punch, and a
piece broken off of the side of the hole in the die. Small particles some-
times fly off from galvanized iron when holes are punched in it, but there
was no evidence that any serious injury had been known to result from
them. Held: There was substantial evidence of causal negligence of the
master. The evidence that the servant assumed the risk was not conclu-
sive, and these questions were for the jury.
-American Smelting & Refining Co. v. McGee, 157 Fed. 69..

84 C. C. A. 573
The request to charge that if the employé knew or bad an opportunity
to know of the defect and appreciate its risk he assumed it, or was guilty
of contributory negligence, was properly refused because the defect was
not readily observable. The true rule is that if the servant knew of the
defect, or if it was so plainly observable that he could have seen it by the
exercise of ordinary prudence, and if he appreciated that it was danger-
ous, he assumed the risk of it.
-American Smelting & Refining Co. v. McGee, 157 Fed. 69..

84 0. C. A. 573
An employé who was at work in a tunnel from 51, to 7 feet in height,
repairing the track of a railroad operated by electricity by means of a trol-
ley which ran on a wire suspended 5 or 6 inches beneath the right side
of the roof of the tunnel, who had been warned to look out for the wire,
that contact with it might kill him, and who had been once knocked down
by electricity from it, stopped from his work of driving a wedge under
a rail beneath the wire, arose from his stooping position until his neck
struck it and was killed by the electricity therefrom. IIeld :

The employé assumed the risk of injury from the wire by entering and
continuing in the employment.

-Burke v. Union Coal & Coke Co., 157 Fed. 178......84 C. C. A. 626
A servant, by entering or continuing in the employment of a master, as-
sumes the risks and dangers of the employment which he knows and
appreciates, and those which an ordinarily prudent and careful person
of his capacity and intelligence would have known and appreciated in his
situation.

-Burke v. Union Coal & Coke Co., 157 Fed. 178......84 C. C. A. 626
An enployé cannot be heard to say that he did not appreciate or realize
the risk or danger where the defects were obvious, and the dangers would
have been apparent to an ordinarily prudent person of his intelligence
and experience in his situation.

-Burke v. Union Coal & Coke Co., 157 Fed. 178.......81 C. C. A. 620
Among the risks and dangers which the servant assumes by entering
or continuing in the employment without complaining of them are those
which aris from defects that are obvious or readily observable through
the failure of the master to completely discharge his duty to exercise or-
dinary care to furnish the servant with a reasonably safe place to work
and with reasonably safe appliances to use.

--Burke v. Union Coal & Coke Co., 157 Fed. 178.....81 C. C. A. 626

Contributory negligence of servant.
In an action by a servant against the master to recover damages for a
personal injury, an instruction that plaintiff's contributory negligence
would not preclude his recovery, unless without it the defendant's neg-
ligence could not have caused the injury, was not erroneous.

-Northern Pac. Ry. Co. v. Wendel, 156 Fed. 336......84 C. C. A. 232

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The court rightly charged that it was the servant's duty to use that
kind of care for his own safety that an ordinarily prudent man, under
similar circumstances with the plaintiff's experience, would use, and that
if he failed to exercise this care and that failure directly contributed to
bis injury, he could not recover.
-American Smelting & Refining Co. v. McGee, 157 Fed. 69...

84 C. C. A. 573
The servant's opportunity to know of the defect, which was not ob-
vious or readily observable, was not conclusive evidence of his negligence.
-American Smelting & Refining Co. v. McGee, 157 Fed. 69...

81 C. C. A. 573
$ 5. Actions.

The mere fact that an accident happened by which a servant was in-
jured does not itself create a presumption of negligence on the part of
the master, and, where negligence is charged as a ground for recovery by
the servant against the master, the burden is upon the plaintiff to show
that by some act or omission the defendant violated some duty he owed
to the plaintiff which caused the injury.

-Omaha Packing Co. v. Sanduski, 155 Fed. 897......84 C. C. A. 89
Plaintiff was a telephone lineman engaged, with others, under a sub-
foreman, in stringing new wires. He was upon the cross-arm of one pole
holding back two wires, while they were being run over the cross-arın of
the next pole. To the end of the wires was tied a rope, and beyond that
a piece of insulated wire. The foreman and others were beyond the next
pole pulling the wires over the cross-arm, when he called to plaintiff to
“let them come.” Plaintiff did so, and the wires sagged and came in con-
tact with highly charged electric light wires, which ran transversely
across the line at a lower level, and he received a shock which caused his
injury. There was evidence that the method pursued was not usual nor
proper under the circumstances, the plaintiff did not know the position of
the light wires, and, because of intervening rees, could not see it dis-
tinctly, nor tell whether the insulated wire, the rope, or the bare wires
were over the light wires when he was ordered to slack. Held, that
whether he had such knowledge of the situation that he assumed the risk.
or was justified in relying on the care of the foreman and obeying the
order, was a question for the jury.
-New England Telephone & Telegraph Co. v. Butler, 156 Fed. 321...

84 C. C. A. 217
Whether he was guilty of contributory negligence was a question for
the jury.
-New England Telephone & Telegraph Co. v. Butler, 156 Fed. 321...

84 C. C. A. 217
In an action by an employé to recover for an injury resulting from the
breaking of a belt used to run a planing machine, the alleged negligence
of defendant being the use of a belt which was decayed and defective by
reason of its age, it was not error to admit evidence offered by plaintiff
to show that the knives of the machine were dull at the time, and the
gauge inaccurate, not to establish an independent and different act of neg-
ligence, but as showing conditions likely to be met with and affecting the
strain on the belt.

—Northern Pac. Ry. Co. v. Wendel, 156 Fed. 336.....84 C. C. A. 232
In an action by an employé to recover for an injury resulting from
the breaking of a belt alleged to have been due to its age and defective
condition, evidence that the breaking might have been due to other causes
held insufficient to entitle defendant to the direction of a verdict.

-Northern Pac. Ry. Co. y. Wendel, 150 Fed. 336.....81 C. C. A. 232
Where the evidence on an issue of contributory negligence, in an action
by an employé to recover for an injury, is conflicting, the question is one
for the jury.

-Northern Pac. Ry. Co. v. Wendel, 15C Fed. 336.....84 C. C. A. 232

In an action by a lineman employed with others in removing electric light wires from the poles on which they were strung to recover for an injury caused by the falling of a pole on which he was at work, it was shown that the cause of the injury was the negligent method of doing the work; that the act of negligence which was the immediate cause of the falling of the pole was done by a workman by direction of one of two men who were standing on the ground, and not working with their hands, but giving directions to the workmen. Held, that such evidence was sufficient to entitle plaintiff to go to the jury on the question whether or not such men were, or either of them was, "entrusted with and exercising superintendence and whose sole or principal duty was that of superintendence," so as to render the defendant, as employer, liable for his negligence under the Massachusetts employer's liability act (Rev. Laws Mass. C. 106. $ 71). -Munroe v. Fred T. Ley & Co., 156 Fed. 468; Same v. Edison Electric Illuminating Co., of Boston, Id.......

.84 C. C. A. 278 Plaintiff, a boy 16 years old, was employed by defendant at its smelter, and was set to work at night to assist a man in the clean-up yard. This yard was paved with brick, and upon this floor was deposited cones of slag and other refuse which it was the duty of plaintiff and his fellow workman to load on cars and remove, it being necessary to break up the cones for that purpose. On the second night of such work plaintiff was breaking a cone with a sledge, when an explosion occurred by which he was seriously injured. It was shown that when cones coutained molten metal, and there was any water or moisture in their vicinity, it was highly dangerous to break them while hot, as if the metal came in contact with water it would cause an explosion ; also, that the floor of the yard had depressions where water might stand and that employés, with defendant's knowledge, sometimes emptied water in the yard. Plaintiff was given no instructions nor warning of danger, and, while he knew the effect if the hot metal came in contact with water, he did not know that there was any water in the yard, and could not see by reason of the darkness, nor did he know that the cone which he was breaking was hot. Held, that the question of defendant's negligence was properly submitted to the jury and that a verdict for plaintiff would not be disturbed. -Northport Smelting & Refining Co. v. Twitchell, 156 Fed. 643..

84 C. C. A. 35.) The question of contributory negligence was properly submitted to the jury, and a verdict for plaintiff would not be disturbed. -Northport Smelting & Refining Co. v. Twitchell, 156 Fed. 643..

84 C. C. A. 35.7 Where the evidence that a servant was guilty of contributory negligence was not conclusive, the question is for the jury. -American Smelting & Refining Co. v. McGee, 157 Fed. 69.

84 C. C. A. 573 Where the uncontradicted evidence discloses the fact that the defects in the place or machinery or niethod of operation were obvious, and the danger from them apparent to an ordinarily prudent person of the intelligence and capacity of the servant, and that the servant entered upon or continued in the service without complaint of them, the defense of assumption of risk is conclusively established, there is no question for the jury, and the court sliouid instruct them to return a verdict for the master.

-Burke v. Union Coal & Coke Co., 157 Fed. 178.....84 C. C. A, 626 § 6. Liabilities for injuries to third persons.

A subordinate corporation contracted with an electric illuminating company, which controlled a number of plants, for all its work of reparation and rebuilding, and in the contract agreed to assume all risks in reference thereto. Hold, that the major corporation was under no liability, either at common law or under the employer's liability statutes of Massachusetts, for any injury arising to a lineman employed by the subordinate corporation in the work of reparation or rebuilding on its premises, or about its works, through the negligence of the subordinate corporation, -Munroe v. Fred T. Ley & Co., 156 Fed. 468; Same v. Edison Elec

84 C.C.A.-47

tric llluininating Co. of Boston, Id....... .84 C. C. A. 278

MAXIMS.

Of equity, see "Equity," § 1.

MEMORANDA.

Required by statute of frauds, see "Frauds, Statute of," 2.

MERGER.

Of cause of action in judgment, see "Judgment,” $ 3.

MINES AND MINERALS.

Breach of agreement relating to mining claims as creating trusts, see “Trusts,"

8 1. Fellow servants in mining operations, see “Master and Servant," $ 2. Ratification of tender to part owner of mining claim, see “Tender.” Redelivery of stock in mining company deposited in bank, see “Escrows." Remedy at law'affecting jurisdiction of equity to establish title to mining

claim, see “Equity," $ 1. 8 1. Public mineral lands.

Instructions given in an action to recover possession of a mining claim, relating to the questions of discovery of mineral and possession, considered, and held not erroneous as applied to the evidence. -Charlton v. Kelly, 156 Fed. 433....

.....84 C. C. A. 29.) An instruction that, to constitute a discovery of gold sufficient to sup-.port a location of a gold placer mining claim as against an adverse mineral locator, the gold found must be of such character and quantity and found under such circumstances as to justify a man of ordinary prudence in the expenditure of time and money in the development of the property, is not erroneous: the word "development," as so used, being the equivalent of "exploration.--Charlton v. Kelly, 156 Fed. 433....

.....84 C. C. A. 295 Under Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1426), which requires that a mining location "must be distinctly marked on the ground so that its boundaries can be readily traced," no particular method of marking is required, and what is sufficient may depend on the topography of the gronnd; it being a question of fact in each case whether the lines are so marked that they can be readily traced by a person making a reasonable effort to do so. -Charlton v. Kelly, 156 Fed. 433....

84 C. C. A. 29.) The distinguishing test which determines whether or not a valuable mineral dejuesit may be secured by a lode claim or by a placer claim is the form and character of the deposit. If it is in a vein or lode in rock in place, it may be secured by a lode claim, and it may not be by a placer claim. If it is not in a vein or lode in rock in place, it may be secured by a placer claim, and may not be by a lode claim.

- Webb v. American Asphaltum Min. Co., 1.57 Fed. 203..81C. C. A. 631 The words “other valuable deposits" the clause “mining claims upon veins or lodes of quartz, or other rock in place bearing gold, silver, ciuna

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