MASTER AND SERVANT- Continued.

wood which fell from above, and there is evidence that it was the general
practice in the city of New York to protect men working beneath such
structures undergoing repairs by a canvas or temporary staging, it is error to
nonsuit. The defendant's negligence, the contributory negligence of the
plaintiff and his assumption of risk are for the jury.

A master is chargeable with notice that he is using a dangerous method of
altering such structure when he violates the provisions of the Labor Law.

Even if the negligence of the plaintiff's fellow-servant caused the block of wood
to fall, the master was not relieved of his duty to provide a safe place to
work.

Evidence upon which a jury would be justified in finding that a master violated
the Labor Law in not furnishing safe appliances so constructed, placed and
operated as to protect the lives and limbs of his servants raises a question of
negligence, even if the action be laid at common law.

A master is required to furnish a safe place to work, not merely a place reason-
ably safe in its natural condition, and cannot escape liability upon the ground
that the place only became dangerous as the work progressed, if the danger
could have been foreseen and avoided by reasonable care.

Evidence examined, and held, that a contention that the injury was caused
by the passage of pedestrians and vehicles over the elevated structure was
untenable. Id.

10. Negligence-injury by fall into vat of hot liquid-contributory negligence —
safe place to work. Where an employee, knowing that slats laid across a vat con-
taining hot liquid from which steam was ascending were not fastened, stood on
the slats by the direction of a foreman in order to paint pipes above the vats, he
cannot recover for injuries received by the slipping of the slats, for his knowl-
edge of the danger was equal to that of the foreman.

Under the circumstances the doctrine of a safe place to work has no application,
as the vat and slats were not a place to work, but instrumentalities used as an
improvised platform. Marsen v. Nichols Copper Co., 294.

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11. Negligence-death by boiler explosion — when lessee of steam scow not liable ——
damages-excessive verdict. A master engaged in laying submarine cables, who
hires from a reputable owner a steam scow operated by an engineer furnished by
the lessor, is not liable for the death of a servant caused by the explosion of the
boiler.

While an employer must exercise reasonable care to furnish safe implements,
he is not liable for the negligence of persons not his servants, nor is he negligent
in assuming that reputable contractors will perform their duties.

The mere fact that a boiler exploded does not establish negligence.

Evidence examined, and held, to warrant a finding that the lessor of the scow
was negligent.

A verdict of $20,000 for the death of a healthy, industrious man, forty-three
years of age, earning $60 a month, which he contributed to the support of a wife
aud six children, is excessive, in that it far exceeds his probable earnings at that
rate, as figured by the mortality tables.

The jury in assessing such damages are not concluded by the annuities table,
but may credit a decedent with a probability of life in excess of that estimated,
and may consider the pecuniary value of his advice to and care of his young
children. O'Doherty v. Postal Telegraph Cable Co., 298.

erro-

12. Negligence-death caused by projecting set screw-failure to guard
neous nonsuit-- Employers' Liability Act - assumption of risk. It is for the jury
to say whether a master is liable for the death of a servant whose clothing was
caught by an unguarded set screw projecting from a rapidly revolving shaft
maintained by the master in close vicinity to shelves whereon employees, as
part of their regular duty, were required to place patterns.

Under the circumstances, it cannot be said, as a matter of law, that the Labor
Law does not require a shaft with set screws so located to be guarded.

Where an action for death so caused is brought under the Employers' Liability
Act the assumption of risk is a question for the jury, nor under the circum-
stances could it be disposed of as a question of law independently of the statute.
Wittmer v. Fairhurst, 305.

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13. Negligence- unguarded elevator-conflict of law.
controls assumption of risk — promise to repair defect.

law of place of accident
Where an injury to a

MASTER AND SERVANT- Continued.

servant caused by the alleged negligence of his master happened in another
State, the liability is governed by the laws of that State.

By the law of New Jersey, where a master by statute is required to guard ele-
vator shafts, a violation of the act to the knowledge of the servant does not
relieve the latter from the assumption of risk incident to the violation, which
defense is available to the master.

But, in the State of New Jersey, as in this State, such assumption of risk by a
servant knowing of the violation of the statute does not exist where the
servant complained of the defect and the master promised to remedy it as an
inducement to the servant to continue his employment. Where such promise
was general and indefinite, the master's undertaking to remedy runs for a
reasonable time. Stokes v. Barber Asphalt Paving Co., 363.

14. Same-authority of superintendent — when negligence, assumption of risk
and contributory negligence for jury. Such promise to remedy a defect can be
made on behalf of a master by one standing in his place or having authority to
make it. Express delegation of authority need not be proved, but may be
inferred from acts which fairly tend to show its existence.

Thus, where the master's superintendent had power to stop, start and repair
machinery, to hire and discharge servants, it may be inferred that he had
authority to promise to repair a defective elevator on behalf of his employer.

Where an elevator in a factory was not placed in the charge of any particu-
iar person, but could be operated by any servant who desired to use it, and the
master failed to guard the shaft openings as required by statute, whereby an
employee in the course of his duty was injured by the descent of the elevator, it
is for the jury to say whether the master was negligent in failing to guard the
elevator, or to put it in charge of an operator, or to install some signal to give
warning that it was about to be moved. Id.

15. Negligence-death by fall from bridge-tie used in temporary railroad not
scaffold. Neither the deck of a bridge upon which it is proposed to install an ele-
vated railroad, nor a tie laid thereon to accommodate a traveling derrick, is a
scaffold within the meaning of the Labor Law.

Where an employee fell and was killed because in the course of his duty he
stepped upon the projecting end of a loose tie which had been used as a portion
of a temporary track to support a derrick, it is error to refuse to charge that the
tie was not a scaffold within the meaning of the Labor Law. Brady v. Pennsyl-
vania Steel Co., 372.

16. Negligence evidence — prior decision — res adjudicata. Where a judgment
in favor of the plaintiff suing to recover for the death of her intestate was
reversed on a former appeal on the ground that she failed to show that the injuries
were the proximate cause of death without any expression of opinion as to the
sufficiency of the evidence to show negligence, the former decision is not res
adjudicata as to the defendant's negligence.

Evidence in an action to recover for the death of a workman alleged to have
been caused by the fall of a stone from an embankment examined, and held, to
present questions for the jury as to whether the decedent understood a warning
alleged to have been given; whether he was free from contributory negligence,
and whether the defendant should have removed or shored up the stone or warned
the decedent of the danger. Reris v. Haines, 402.

17. Negligence-injury by displacement of bar guarding doorway—facts not jus-
tifying recovery. Action against a master to recover for personal injuries. The
plaintiff, employed in a gas manufactory, when going to an open door for fresh
air placed his hands upon an iron bar which rested in two sockets, being designed
as a protecting barrier. The bar slipped from its place and the plaintiff was
precipitated to the street below. The bar and sockets were found to be unbroken.
Evidence examined, and held, insufficient to support a verdict for the plaintiff.

A master is not bound to provide appliances which make accidents impossible;
it is enough if he exercise reasonable care in that regard.

When an appliance has been in use for a long period and has proved safe and
adequate for the purpose intended, negligence cannot be predicated upon a
continued use. Fahey v. New Amsterdam Gas Co., 611.

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18. Negligence Employers' Liability Act sufficiency of notice-service by
mail. A notice is sufficient to bring the case within the Employers' Liability
Act which states that at a certain hour on a certain day "while under your

MASTER AND SERVANT- Continued.

employ on the new Singer building two steel columns were placed in a careless
position on the temporary bridge two feet above the 14th floor, 17th tier. These
columns were placed one on top of the other, the top one rolled or was pushed
off onto his [the plaintiff's] leg and broke the leg four inches above the knee.'

The cause of an injury and the negligent act causing an accident are not the
same, and the statute plainly distinguishes between the two. The statute only
requires notice of the time, place and cause of the injury.

A notice under the Employers' Liability Act may be served by mail and the
service is good, although the letter is not received.

Although the fact that the notice was never received may tend to show that it
was never sent, where the plaintiff has testified that the notice was mailed
addressed to the defendant, the receipt thereof is a question for the jury. Hurley
V. Olcott, 631.

19. Same-acts of superintendence — assumption of risks-distinction between
necessary and obvious risks charge approved - appeal-insufficient exception —
verdict not excessive. The Employers' Liability Act does not require that a per-
son for whose negligence the master is responsible shall be a general superin-
tendent, but merely that he shall be a person whose sole or principal duty is that
of superintendence.

Thus, although there was a general superintendent placed in charge of the
construction of a building, a person in charge of a gang of six men employed in
lifting iron columns and authorized to direct them in the management of the
hoisting derrick and the placing of the columns may, in the absence of the
general superintendent, be found by the jury to be a superintendent within
the Employers' Liability Act. This is true, although of his own volition he
Occasionally lent a hand to hasten the work.

Under the Employers' Liability Act there is a distinction between necessary
risks assumed by a servant, i. e., those arising after the master has performed
his duty, and obvious risks, i. e., those which may be due to the master's failure
to perform his duty. It is only the former risks that the servant assumes.

In an action under the Employers' Liability Act the question as to whether
a servant by continuing his employment assumes the risk is for the jury.

Sentences extracted from a charge, and disassociated from their context, can-
not be made the basis of reversal if the charge construed as a whole is correct.
A verdict of $25,000 is not excessive where the plaintiff, a man twenty-five
years of age, earning from $30 to $50 a week, sustained a fracture of the leg,
which formed a false joint on uniting, so as to cause an unnatural motion of the
leg, and created a condition which will grow progressively worse. Id.

20. Negligence injury to spectator at theater — contract not creating partner-
ship or relation of landlord and tenant estoppel. An agreement, by which the
manager of a theatrical company agrees to present a play in a certain theater
owned by another person for a stipulated percentage of the gross receipts, the
theater owner to furnish the scenery, equipment and regular employees of the
theater, does not create a partnership so as to make the theater owner liable for
the negligence of a person, ordinarily employed by him, but at the time employed
and paid by the manager of the company to operate a spotlight at the perform-
ance. Under the circumstances the manager of the company is an independent
contractor.

Unless there be an agreement to share the profits as such there is no partnership.
Such contract does not create the relation of landlord and tenant.

Although the manager of the theater retained possession and control of the
house, and sold the tickets of admission, he is not estopped to deny that the
employees of the theatrical company were his servants.

One person cannot be held liable for the negligence of another except where
the relation of master and servant exists so that the maxim of respondeat superior
applies, or where he is estopped to deny that it exists. Thomas v. Springer, 640.

21. Negligence-injury by hackdriver returning to stable when engaged in
master's business. A master is liable for the negligence of his servant while doing
his work no matter how irregularly or with what disregard of instructions.

Where a hackdriver returning to his master's stable from a funeral took a
circuitous route, stopped to call upon a friend, and on leaving the house on the
66

APP. DIV.- VOL. CXXXIV.

MASTER AND SERVANT - Continued.

termination of the call negligently ran over a child who was playing by the
step of his coach, the master is liable.

Even if he temporarily abandoned his master's business when making the call
he resumed it on starting to return to the stable. Jones v. Weigand, 644.

22. Negligence injury by falling plank — dismissal of complaint — fellow serv-
ant. Action against codefendants to recover for personal injuries received by
the driver of an ash cart who was struck by a falling plank. Evidence examined,
and held, that a dismissal of the complaint as to one of the defendants was
proper and that a judgment against the other should be reversed in that the
injury was caused by the act of a fellow-servant. McNamee v. Borough Develop-
ment Co., 666.

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23. Negligence Employers' Liability Act- when one is a superintendent —
pleading-admissions-estoppel. In order to hold a master liable under the
Employers' Liability Act for the negligence of a foreman it must be shown not
only that the negligence was that of a person exercising superintendence but
that he was engaged in an act of superintendence at the time.

The superintendence intended by the statute involves more than the mere
authority to give directions to a helper in respect to some detail of the work.
Where plaintiff, a laborer engaged in removing old ties from an elevated rail-
road and replacing them with new ones, was ordered to go down into the street
and carry away the old ties as they were thrown down and the foreman him-
self went into the street to warn the public and to signal the man above when
to drop the ties and plaintiff was hit by a tie dropped in response to the fore-
man's signal, he cannot recover under the Employers' Liability Act for the
injuries so received, for at the time the foreman was engaged in a mere detail
of the work and not in an act of superintendence.

While a foreman is performing a part of the work which he might have assigned
to any common laborer, he is not discharging the duties of a superintendent.
Admissions of the service of a proper notice under the Employers' Liability Act
contained in the answer do not estop the defendant from raising the question of
the sufficiency of the evidence to establish any cause of action whatever. Larson
V. Brooklyn Heights Railroad Co., 679.

24. Negligence-injury by unexpected starting of machinery—when master not
negligent. Where an employee having sole control of an electric motor which
ran another machine in a factory shut off the power in order to examine a hot
journal, and mounting a ladder to examine the journal on the assurance of a
foreman that the machine could not start unless he, the plaintiff, started it, was
injured by the unexpected starting of the machine, and no defects in the machine
or the motor are shown, the master, having promulgated a rule forbidding
employees to start any machinery without ascertaining whether others were in a
dangerous position, is not liable in a common-law action.

The master was not bound to protect his employee against the chance that a
fellow servant would start the machinery without authority, without necessity,
and in violation of the master's rule.

Evidence examined, and held, that a finding by the jury that the plaintiff
stopped the machinery before examining the journal was against the weight of
evidence. Kirkover v. Lackawanna Steel Co., 792.

25. Negligence-injury by fall of casting-instructions as to obvious facts-act
of fellow-servant. One performing acts of superintendence is not obliged to give
instructions where the minutest instructions, if given, would merely call atten-
tion to a perfectly obvious fact.

A master is not negligent in requiring his employees to move a casting weigh-
ing 1,300 pounds from a flat car to an elevator by hand if he furnishes a sufficient
number of men for that purpose, although it might have been safer if it had
been moved by a crane.

A master is not required to adopt the safest and best known methods of per-
forming his work, but only such as are reasonably safe and such as would be
adopted by a person of ordinary care and prudence.

A master is not liable for injuries received by a servant who was assisting in
the removal of a heavy iron casting from a car, caused by the fact that one of his
fellow-servants, of which a sufficient number were employed, let go of the
casting so that it fell. Ozogar v. Pierce, Butler & Pierce Manufacturing Co., 800.

26. Negligence-explosion of steam pipe - act of fellow-servant. Where the
plaintiff's fellow-servant employed to operate a paper machine negligently opened ·
the valve of a pipe containing steam at one hundred pounds per inch pressure,
so as to let the high pressure steam into a connecting pipe which he knew was
designed only to carry steam at four or five pounds pressure, without partially
closing the valve in the latter pipe so as to reduce the pressure of the steam
admitted, whereby a wooden plug in the smaller pipe blew out injuring the
plaintiff, the master is not liable, if the plug was amply sufficient to resist the

proper pressure.

No finding of negligence can be based upon the fact that the master did not use
a metal cap in place of the wooden plug although the latter might withstand
higher pressure, for it is probable that the pipe itself, being designed to
receive only five pounds pressure, would have exploded. Utter v. International
Paper Co., 806.

Cemetery association and police officer — respondeat superior.

See GUARANTY AND SURETYSHIP, 2.

Injury to pedestrian by vehicle -- failure to show employment of driver.
See NEGLIGENCE, 2.

Fall of elevator-failure to show negligence of master.

See NEGLIGENCE, 3.

Right of servant to employ substitute.

See NEGLIGENCE, 5.

Agreement that employees shall be deemed employees of another question for
jury.

See RAILROAD, 3.

Failure to furnish competent fellow-servants.

See RAILROAD, 6.

MECHANIC'S LIEN.

See LIEN.

MINES AND MINING.

Mining lease construed — when action premature.

See LANDLORD AND TENANT, 4.

MISTAKE.

Impeaching an account stated.

See PLEADING, 8.

MORTGAGE.

1. Mortgagee in possession — election by committee of incompetent mortgagor -
foreclosure-accounting for rents received. A mortgagee of lands cannot, without
the consent of the mortgagor, be deemed a mortgagee in possession.

The committee of an insane mortgagor may elect to regard the mortgagee as
a mortgagee in possession.

Unless the parties so agree, the receipt of rents and profits by a mortgagee in
possession is not a legal satisfaction; they must be applied by a judgment of the
court in an accounting in satisfaction of the mortgage before the mortgagee is
divested of his status.

Where a mortgagor sued on foreclosure demands such accounting by a mort-
gagee in possession, the court has power to strike a balance between the
amount due on the mortgage and the rents and profits chargeable to the
mortgagee. Hoye v. Bridgewater, 255.