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Master and Servant.

The term "defective machinery,"
as used in Sec. 3365-21, Rev. Stat.,
relating to prima facie negligence,
is not restricted to defective con-
struction or something absent from
the machinery, but applies to
machinery which has been allowed
to become out of repair, gummed
up or so dirty that it will not ope-
rate as it is designed to or should
operate; but the presumption of
negligence from such defects is re-

The fact that the master carries
indemnity insurance against loss
on account of damages to employees
in no way affects his liability for
personal injuries or the right to re-
cover for wrongful death; nor does
such fact have a tendency to show
a lack of care, on the part of the
master, for the safety of employees.
Rupp v. Shaffer.

The admission of evidence in an
action for damages for wrongful
death, as to the master's procuring
an insurance policy indemnifying
him against loss by reason of dam-
ages recovered against him for in-
jury to employees in his service.

Section 6986-1. Rev. Stat.. pro-
hibiting the employment of chil-
dren under sixteen years of age to
operate a dangerous machine,
makes it evidence of negligence to
employ a child under such age, for
such purpose, because the statute
indicates that such children are un-
fit by reason of their indiscretion
to be so employed. Breckenridge
Co. v. Reagan.

It is the duty of a manufacturing
company to give a girl of the age
of fifteen years, in entering their
emplov and having no experience
in the operation
of machines,
proper instruction as to the manipu-
lation, and dangers of operation, of
a machine.

The question whether a person
emploved by a manufacturing com-
pany to operate a machine was given
such instructions as to method of
operating, dangers, etc., as should
have been given under the circum-
stances, and in view of the age of
employee, is for the jury.

It cannot be said as a matter of
law that a girl fifteen years of age
was guilty of contributory negli-
gence in continuing to work on such
a machine after reporting its con-
dition to a foreman whose business

it was to repair it, and being di-
rected by him to continue her work,
and promised that it would be re-
paired. The question was properly
submitted to the jury and their ver-
dict will not be disturbed.

There is a difference in the obli-
gation of the employer, in respect
to furnishing a suitable place for
the employee to work, where the
work is done upon the premises of
a third party, instead of at the shop
or factory of the employer. Shadle
v. Illuminating Co.

A switch tender, employed in a
railroad yard, whose duty is to open
and close such switches as notified
by the different conductors and en-
gineers, is not a fellow servant of
the conductor and engineer of a
yard engine within the meaning of
Secs. 3365-22, Rev. Stat., notwith-
standing the conductor, engineer,
and switch tender are controlled by
the yardmaster. The railroad com-
pany is, therefore, liable for the
negligence of such conductor or en-
gineer by reason of which the
switch tender is injured. Lake
Shore & M. S. Ry. Co. v. Pero. 25

Under circumstances stated in the
preceding paragraph, where such
employee knew that leaving his
station at the tubing line would
cause the elevator to fall, even if the
order directing him to do so had
been accompanied by a threat that
he would lose his emplovment if he
failed to obey it, he would not be ex-
cused for doing so or entitled to re-
cover for resulting injuries. Gen-
sen v. Oil Co.

Where, in removing or inserting
sucker rods in an oil well, by ex-
perienced employees, an order was
given by the foreman to a person in
charge of the tubing line, which was
required to be kept taut in order to
prevent the elevator from falling,
directing him to leave his station
and go to another place to start
the engine, which, by reason of de-
fects, had stopped, the voluntary
action of such employee in obeying
such order, though knowing that
the result of releasing the tubing
line would endanger him, in a cause
intervening which will defeat re-
covery, on account of defective
machinery, for resulting injuries.

The negligence of a section boss
in charge of a gang of section men
is the negligence of the railway

Master and Servant.

company. Pittsburg, Cin., Chic. &
St. Louis Ry. Co. v. Moreland. 612

If it should be conceded that the
section boss was guilty of negli-
gence in placing the employee at
that point and in not anticipating
that the train would pass and that
the employee might go near the ice,
the latter was also guilty of some
fault in not looking after his own
safety and in stepping near the ice
when the jar of the train would be
likely to cause it to fall; and if they
were mutually at fault, the em-
ployee cannot recover. Pittsburg,
C. C. & St. L. Ry. Co. v. Moreland.

A charge, in such case, that it
was "the duty of the defendant and
Its agents having direction over its
men, to have ascertained the dan-
gerous character of that work; or,
if the defendant knew of, or could
have discovered, the dangerous char-
acter of the work, it was its duty to
do so," does not correctly state the

A railroad company is not liable
for injuries to a section hand caused
by the falling of ice from a ledge at
the side of the railroad track, where
it appears that such employee would
not have been injured by the falling
ice while at work, but that, to avoid
a passing train, which could have
been seen several hundred yards
away, he stepped to the left of the
track and close to the ledge, when
he could easily have stepped to the
other side of the track or farther
along on the left side, and thus
have avoided the danger of which
he knew, and had the same means
of knowing as the foreman under
whom he was working.

A railway company Owes no
higher duty to its employees, in re-
spect to the safety of a place to
work, than a municipal corporation
owes to its citizens in respect to
its streets. The rule is, that, if the
employee can easily avoid a known
place of danger, but takes the
chance of going into it, he cannot
recover. Schaefler v. Sandusky, 33
Ohio St., 246, fonowed.

Conductors are not fellow serv-
ants of, but are the superiors of
brakeman on the same train. Cleve-
land, C. C. & St. L. Ry. Co. v. Hud-
It would be improper for a trial
Judge to charge that a railroad


company is not liable for injuries
"sustained in whole or in part by
the negligence of a fellow servant."

Where the court instructs the jury
to the effect that the rule of a rail-
road company required a brakeman
to be on top of the train, and that
if he was not there and by reason of
the violation of such rule he was
injured, he cannot recover. this suffi-
ciently recognizes the right of the
railway company to make rules for
the government of its employees
and the necessity of obeying them,
without embodying it again in a
special request.

The fireman of a locomotive and
a brakeman on the same train are
fellow servants and neither can re-
cover for the negligence of the
other. Lake Shore & M. S. Ry. Co.
v. Bixler.

An employer is bound to use that
degree of care and prudence gener-
ally used by prudent persons in the
same business and to furnish safe
and proper appliances for the per-
formance of that duty. by the serv-
ant, or in regard to which the serv-
ant is to perform his duty: and
that care is satisfied when the em-
ployer furnishes such appliances as
are generally used in the business.
The employer is not required to fur-
nish absolutely safe and perfect
machinery and appliances, nor is he
required to insure the perfect con-
dition thereof.

If it was a rule of a railway com-
pany that a fireman was not to man-
age an engine in the absence of the
engineer, and the conductor gave an
order to the fireman to assist in
the switching of cars, knowing he
was going to do it in the absence of
the engineer, the company would be
responsible on the ground that the
conductor was giving an order for-
bidden by the rules of the emplov-


The company would not be liable
for an accident occurring to a brake-
man through such fireman, while
switching cars, where there is no
evidence that the conductor gave
the order to the fireman to move
the cars, and none to show that the
conductor knew whatever he did
order to be done was to be done in
the absence of the engineer. Ib.

A person employed by a coal com-
pany to run a stationary engine, to
operate its cranes and hoists for

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cific reference to the property con-

Whether mortgage will follow and
include a lot purchased with the
tolls and income of a railroad com-
pany subsequent to the execution of
an income mortgage, where all the
property covered by the mortgage
is entirely insufficient to pay off and
discharge the indebtedness specified
in it, quaere?

Under Sec. 3398, Rev. Stat., pre-
scribing the priority of liens against
railroad companies reorganized un-
der Sec. 3393, Rev. Stat., et seq.,
whatever mortgage or deed of trust
may be made by the reorganized
company is made subject to the
rights of parties who recover dam-
ages for injuries thereafter suffered
or sustained by the misconduct of
its agents; and for such damages a
party shall have a lien upon the
road superior to any mortgage or
deed of trust.

Where a lien grew out of injuries
sustained by reason of misconduct
of the agents and servants of a re-
organized railroad company, and be-
ing superior under Sec. 3393, Rev.
Stat., to that of a reorganization
mortgage, the lienholder is not af-
fected by foreclosure of such mort-
gage, unless he is made a party



A person walking upon a street
in the ordinary way and where he
has a right to go, and where people
generally are accustomed to go, has
a right to have ordinary care exer-
cised toward him on the part of
the city in keeping its streets and
alley-ways in repair; and if an ex-
cavation is made with the knowl-
edge and authority of the city and
negligently left without light
guard, and such person, without
negligence on his part, falls into it,
he can recover for injuries thereby
received. Nitz v. Toledo.


Under circumstances stated in
the preceding paragraph, where the
scales were removed by the city, or
with its knowledge, and an excava-
tion, seven or eight feet deep, caused
thereby, left unguarded and un-
lighted, the city is liable for injuries
to pedestrians who, without knowl-
edge of the danger, are injured

Use of market platform as thor-
oughfare; a pedestrian is not a tres-
passer in walking thereon, when.

It is the duty of a market superin-
tendent to see that a market place
is not rendered dangerous, either
by obstructions or excavations. Ib.

Where the undisputed evidence
shows that the city by ordinance
leased the scales to a certain per-
son, and through the proper officer
notified the former lessee to remove
his scales and give way to the new
lessee, that the city auditor was per-
sonally notified of their removal by
the retiring lessee, immediately
after removal, that the new lessee
was notified of such fact the same
day by such officer, and the market
superintendent was present and
knew that the same were removed,
the city cannot deny notice thereof
so as to excuse it from properly
guarding the excavation.

A municipal corporation is simply
an agency of the state for the con-
duct of the affairs of government
and therefore subject to the control
of the legislature in all respects, ex-
cept as limited by the constitution.
Clements Brothers Construction Co.
v. Cleveland.

The state, acting through its
legislature, has absolute power and
control over all the public works
within the state, undertaken and
carried on with public funds,
whether the work be paid for by a
municipality or by the state at
large, and those who let the con-
tracts, superintend the construction,
audit the bills and pay them, are in
such work but the agents of the
state, whether the agency be created
by the provisions of a charter or by
special enactment.




Where a railroad company, in re-
moving earth from its grounds, left
on one side of the excavation a steep
embankment, the face of which was
concave and overhanging the exca-
vation, creating a place where boys
would naturally assemble and


where, to the knowledge of the rail-
way company, they were allowed,
for more than a year, to play, such
company is liable for injuries
caused by the falling of the bank,
whether the persons injured are re-
garded as trespassers or licensees.
Ann Arbor R. R. Co. v. Kinz. 379

The rule is the same as to the
plaintiff, in an action for negligence,
that it is as to the defendant, and
the negligence, to bar a recovery,
must have contributed in some de-
gree directly to the injury com-
plained of. Nitz v. Toledo. 357

One is not bound to look out for
the negligence on the part of others
where it would be unreasonable to
expect such negligence. Jutte V.
Bridge Co.


The officers of a steamboat hav-
ing no knowledge of, or reason to
anticipate, an obstruction in a span
of a bridge that was being recon-
structed, though it might have been
seen a mile away, were not negli-
gent in failing to discover obstruc-
tions in such span in sufficient time
to make another span partly ob-
structed and more dangerous
account of high water and not the
usual course under such conditions;
notwithstanding they had knowl-
edge or reason to believe such span
was obstructed, it would have been
negligence on their part to have
placed their boat in a position to
run the span in question without
observing whether the obstruction
was there.

A bridge company, reconstructing
a bridge across the Ohio river, in
failing to observe a condition im-
posed by the secretary of war by
obstructing more than one span at
a time, and in not obeying the order
of the U. S. officer in charge to re-
move the obstruction in the second
span while the first was obstructed,
the second span being the one navi-
gable, while the first was obstructed,
is negligent and liable for damages
to a steamboat which, without neg-
ligence, collided with a pier in con-
sequence of such obstruction of
which persons in charge of the boat
had no previous knowledge.



The officers of steamboats
rivers are required to look out for
the dangers of navigation, but an
unlawful obstruction of navigation
by one not engaged in navigation
cannot be considered an ordinary

57 O. C. D, Vol. 12

danger of navigation which they are
bound to anticipate or avoid. Ib.

Where decedent, who was a car-
penter, was employed as such in
making repairs to some devices con-
nected with machinery, and in the
performance of such duties removed
and replaced a shaft on which a de-
fective fly wheel was attached, but
did not remove the wheel from the
shaft, which, upon being replaced
had to be readjusted by someone
else, and decedent had no occasion
to specifically know about the wheel
in question, although the defect
must have existed for a long time,
the fact that he stood in the line of
its revolution and in the same per-
pendicular plane as the wheel while
it was being operated after being
fixed, does not necessarily show
negligence on his part, or lack of
care such as a prudent man would
have exercised, his superior stand-
ing right by him. Forrest City
Stone Co. v. Richardson.

The fact that a person injured at
a railway crossing was partially
deaf does not require him to use
'greater care to avoid injury than
would otherwise be necessary, pro-
vided he was not conscious of his
infirmity. Baltimore & O. Rd. Co.
v. Van Horn.

The Supreme Court of Ohio has
not adopted the absolute rule that
the plaintiff, in an action for dam-
ages sustained at a railway cross-
ing, must show that he stopped,
looked, and listened in order to free
himself from the charge of contribu-
tory negligence.

A party approaching a railroad
crossing has a right to rely upon
the presumption that the railroad
company would manage its train
according to the law and ordinances
of the city and not carelessly nor
negligently operate them.

A party, to be defeated by his
own negligence, must, in some way,
have contributed to his own injury.
Therefore, the mere fact that a rail-
road employe violated the rules of
the company, in riding in the en-
gine instead of on the cars, need
not defeat his recovery, if, had he
performed his whole duty, the same
results would have followed. Cleve-
land, C. C. & St. L. Ry. Co. v. Hud-
A passenger on a street car, act-
ing in a prudent and careful man-
ner, either while seated, standing


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