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 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- buttable. Ib.
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. 154
The admission of evidence in an action for damages for wrongful Ideath, 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.
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. Ib.
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. Ib.
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. 37
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. Ib.
The negligence of a section boss in charge of a gang of section men is the negligence of the railway
MASTER AND SERVANT-Con. 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 law. Ib.
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. Ib.
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. Schaeffer v. Sandusky, 33 Ohio St., 246, fonowed. Ib.
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- 661 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. Ib.
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. 653
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- plover 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.
Master and Servant-Mortgages.
loading vessels and whose duties also require him to repair the im- plements used in removing the coal from the docks is a fellow servant of other employees of the coal com- pany subject to the same control, paid from the same common fund and engaged in promoting the same object, and the company is not lia- ble for his negligence in setting out a bucket for use which was defective and not properly repaired. Selzer V. Coal Co. 787
The mere fact that the plaintiff knew the position of the standpipe in question, will not defeat his re- covery in an action against the com- pany for negligence. To have that effect it must appear that he knew of its dangerous proximity to the track. Lake Shore & M. S. Ry. Co. v. Godwin. 537
A standpipe placed in such close proximity to a railroad track that a brakeman on a running train would be injured by colliding with it while examining a hot box, is not one of the usual and ordinary dan- gers assumed by a brakeman in his contract of employment. the loca- tion and existence of which he is presumed to know, but it is one pro- duced by the negligence of the com- pany, for which recovery can only be defeated by the brakeman's con- tributory negligence. Ib.
Where, if the servant knew of the defect or danger before the accident, there is good and sufficient reason at the time of the accident for his not remembering it, that is, the na- ture of his business was such that it would naturally and obviously take his mind therefrom, such as would induce ordinary men usually to forget, he cannot be held guilty of contributory negligence for for- getting, so as to defeat his recovery.
The fact that an employee may have knowledge, or in the exercise of ordinary care might know of the extraordinary or unusual dangers to which he may be subjected by the negligence of the master, and by the exercise of such care might protect himself from injury by rea- son thereof, is not sufficient to es- tablish an assumption of such dan- gers as an incident of the employ- ment. Ib.
So far as the rule as to assump- tion of risk is concerned, the nature of the service is immaterial. Ib.
See also CHARGE TO JURY; RAIL ROADS.
A railway mortgage conveying "all the right, title and interest which the said company now has or may hereafter acquire in and to its aforesaid railroad," specifies noth- ing and does not convey after ac- quired property, but only after ac- quired title to the railroad. King v. Railroad Co. 551
A railroad mortgage which does not include depot grounds of another railroad subsequently leased and eventually consolidated with the company giving the mortgage. Ib.
A railroad mortgage conveying "all of the following, present and in the future to be acquired property and estate of said company" does not convey present and after-ac- quired property generally where such description is followed by spe-
cific reference to the property con- veyed. Ib. 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? Ib.
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. Ib.
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 thereto.
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 or guard, and such person, without negligence on his part, falls into it, he can recover for injuries thereby received. Nitz v. Toledo. 357
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 thereby.
Use of market platform as thor- oughfare; a pedestrian is not a tres- passer in walking thereon, when. Ib.
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. Ib.
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. 844
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 Ib. special enactment.
See also HAMLETS; WATERS AND WATERCOURSES.
NECESSARIES-
See ATTACHMENT. NEGLIGENCE-
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- 357 plained of. Nitz v. Toledo.
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. 136
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.
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. 177
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. 106
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. Ib.
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. Ib.
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- 661
A passenger on a street car, act- ing in a prudent and careful man- ner, either while seated, standing
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