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jured person was assisting to perform this work.—Id

<>118 (Ky.) The master operating a coal mine must not only inspect the roof of the mine in the exercise of ordinary care to provide a safe

(E) Fellow Servants.

<>177 (Mo...App.) Master held not liable for servant's acts, unless done in the course of the employment and in furtherance of the master's business.—Hellriegel v. Dunham, 179 S. W.

place for his servants to work, but also support | 763

the roof in a proper manner.—Carter Coal Co. v. Prichard's Adm’r, 179 S. W. 1038.

G-> | 18 (Tenn.) Laws 1903, c. 237, § 28, requiring structures inside mine shafts to protect employés, held to apply to a mine which had completed a shaft for conducting air used by employés in going to and returning from their #-American Zinc Co. v. Graham, 179 S. W. A master’s Violation of the terms of a statute requiring structures to secure safety in mine shafts was negligence per se, and made him responsible for all injuries suffered as a direct consequence thereof.—Id.

&= 124 (Ky.) The master operating a coal mine must inspect the roof of the mine in the exercise of ordinary care, to provide a safe place for his servants to work.—Carter Coal Co. v. Prichard's Adm’r, 179 S. W. 1038.

A master bound to inspect cannot avoid liability for injuries to his servant, unless the servant is also under the duty of inspection or the danger is obvious, nor is a showing of inspection conclusive on the exercise of the required degree of care.—Id.

&= 125 (Ky.) A master is liable to a servant for injury from a defective appliance only when he knows of such defect, or should have known of it by the exercise of ordinary care.—Phillips v. Corbin & Fannin, 179 S. W. 586.

&: 129 (Ky.) The act of a servant while hauling logs into a sawmill in striking a log on the skidway, moving it out of place, was not the proximate cause of the sawyer's death while attempting to replace it.—Lucas Land & Lumber Co. v. Cook’s Adm’r, 179 S. W. 582.

(C) Methods of Work, Rules, and Orders.

Q: 137 (Ky.) Defendant railroad held under the circumstances, not within the rule requiring it to keep a lookout and give warning of the approach of trains for the protection of its employés on the track.—Cumberland R. Co. v. Walton, 179 S. W. 245.

As to railroad employé using its track in defendant’s business, where their presence should have been reasonably anticipated, the railroad WaS 'ired to keep a lookout and to give warning.—Id.

Where employé of defendant railroad, while a trespasser on its track, stepped in front of an approaching engine and was not discovered in time to prevent collision, defendant was not negligent.—Id.

ce: 137 (Tex.) Engine crew not in possession of facts from which ordinarily prudent man would have foreseen that a car inspector on a “kicked” car might alight and be injured by the engine upon a parallel track held under no duty to ring bell or blow whistle.—International & G. N. R. Co. v. Walters, 179 S. W. 854.

(D) Warning and Instructing Servant.

&=> 155 (Tenn.) Danger of employé slipping, where scrub-woman was mopping the floor, as she stepped back from the machine at which she was working, held so obvious that no warning was required.—Standard Knitting Mills v. Hickman, 179 S. W. 385.

Q: 157 (Ky.) Employé in mine warned by cross-timberer of dangerous condition of roof held bound to heed such warning, and not entitled to recover for injuries if he disregarded it. —Carter Coal Co. v. Hill, 179 S. W. 2.

Q: 185 (Tenn.) Rule as to furnishing safe place to work held not to comprehend negligent acts of fellow servants, rendering the place dangerous temporarily.—Standard Knitting . Mills V. Hickman, 179 S. W. 385. &=> 189 (Ky.) No recovery may be had from a master for an injury to a servant not causing death resulting from the ordinary negligence of a superior servant having immediate control of the injured servant.—Consolidated Coal Co. v. Baldridge, 179 S. W. 18. &= 190 (Ky.) Assurance of safety given one assisting contractor in mine by agent selected by coal company to cross-timber the rooms held, in effect, an assurance by the coal company.Carter Coal Co. v. Hill, 179 S. W. 2. &=> 190 (Ky.) Railway company held liable for gross negligence of its foreman, in failing to observe torpedo placed on track before running over it with a hand car.—Gordon v. Chesapeake & O. Ry. Co., 179 S. W. 210.

C>190 (Tenn.) Foreman of crew digging a ditch held authorized to bind his employer by assurances as to the safety of the ditch.—City of Chattanooga v. Powell, 179 S. W. 808. &=> 198 (Ky.) The negligence of a conductor and engineer who left a car on the siding so close to the end that it endangered a fireman who took the engineer’s place temporarily held that of the superior servants.—Chesapeake & O. Ry. Co. v. Shamblen, 179 S. W. 837. &=> 198. (Mo..App.) Under Rev. St. 1909, §§ 5434, 5439, that shop employés engaged in bending railway rails were fellow servants, held not to affect employer's liability for negligence; the rails being intended for a railroad already in operation.—Hellriegel V. Dunham, 179 S. W. 763. C: 199 (Ky.) Brakeman on coal mine motor train and motorman held not fellow servants.— £idated Coal Co. v. Baldridge, 179 S.

C:202 (Ky.) For a fireman to recover for injuries caused by the negligence of the engineer and the conductor on the same train, who were his superiors, their negligence must be gross. –Chesapeake & O. Ry. Co. v. Shamblen, 179 S. W. 837.

c3:202 (Mo..App.) Employer held liable for employé's recklessness, injuring another employé, though he was actuated by malice against the foreman and intended to injure the foreman.— Hellriegel v. Dunham, 179 S. W. 763.

(F) Risks Assumed by Servant.

C=203 (Tex.Civ.App.) Where a servant assumes a risk, it will defeat recovery for injuries caused thereby in any sum.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691. C:2204 (Ky.) A railroad company held not negligently using a defective appliance on a water tower, which would, under federal Employers' Liability Act, deprive it of advantage of defense of assumption of risk in an action by plaintiff, who slipped on the spout he knew was wet.—Davis v. Chesapeake & O. Ry. Co., 179 S. W. 422. 3:2204 (Tenn.) Miner, knowing that employer had failed to comply with Laws 1903, c. 237, § 28, requiring protection on inside shaft, held not to have assumed the risk of injury while ascending the shaft.—American Zinc Co. v. Graham, 179 S. W. 138. &=5205 (Ky.) Where the master's electrician repaired its coal-punching machine and assured a servant that it was all right, the servant might rely thereon and continue its use, unless the danger was so obvious that an ordinarily prudent person would refuse to work.£ Coal & Lumber Co. v. Calhoun, 179 S.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

&=>206 (Ky.) The dangers which a servant assumes when he undertakes his work are those inherent in the work and growing out of it.Phillips v. Corbin & Fannin, 179 S. W. 586. &:210 (Ry.) Employé of railway company assumes all risks ordinarily incident to his employment, including risk of injury by explosion of signal torpedoes placed on track.—Gordon V. Chesapeake & O. Ry. Co., 179 S.W. 210. Q->213 (Ky.) A railroad employé held to assume the risk of injury in the mode of descent from a water tower adopted by him.—Davis V. Chesapeake & O. Ry. Co., 179 S. W. 422. Q=216 (Ky.) A servant does not assume the risk arising from want of sufficient and skillful fellow servants, unless the incompetence was such that an ordinary man would not have continued work.—Lack Singletree Co. v. Cherry, 179 S. W. 1071.

While a servant assumes the risk of ordinary negligence of fellow servants, the master is bound to engage reasonably competent fellow servants.—Id.

6:217 (Ky.) A servant never assumes risks arising from the use of defective tools and appliances, unless he knows of the defect, or it is obvious and he continues without ordinary care to save himself from injury.—Phillips v. Corbin & Fannin, 179 S. W. 586.

c3:217 (Ky.) To prevent a servant's recovery for injury on the ground of his assumption of risk from a defective machine, it must be shown that the danger therefrom was known or clearly observable and appreciated by him.—Stearns Coal & Lumber Co. v. Calhoun, 179 S. W. 590.

C:217 (Ky.) Plaintiff coal miner, engaged in “robbing” pillars, who knew that the roof was unsafe and was injured, could not recover, having assumed the risk.—Imperial Jellico Coal Co. v. Fox, 179 S. W. 1032.

Q->219 (Ky.) A master will not be exonerated from liability for injuries sustained by a servant hurt when a bucket used to carry concrete broke, on the theory that it was a simple tool.— £ v. National Concrete Const. Co., 179 S.

Q: 220 (Ky.) Where a master assures a servant there is no danger from the incompetence of a fellow servant, and the servant is injured from that cause, the master is liable, unless the danger was so obvious that an ordinarily prudent person would not have continued in the #-Lack Singletree Co. v. Cherry, 179 S. W. * L.

&=222 (Ky.) A laborer directed by his foreman to remove a wooden horse from its position across a freshly cut ditch assumed the obvious risk of its caving in from his placing his weight too close to the edge.—White v. Louisville Gas & Electric Co., 179 S. W. 418.

&=222 (Ky.) Plaintiff, who was bound to keep a railroad water tower in repair, held not to be acting under the direct orders of his superior, so as to render the employer liable for injuries occasioned by a slip on the wet spout.—Davis v. Chesapeake & O. Ry. Co., 179 S. W. 422.

C+224 (Tex.Civ.App.) Where the servant is injured while at work, but in doing an unnecessary act of his own volition he assumes the risk, and the master is not liable.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691.

(G) Contributory Negligence of Servant.

Q: 231 (Tenn.) A laborer digging a ditch held not negligent in accepting the assurances of the foreman that the ditch was not dangerous and continuing work there.—City of Chattanooga V. Powell, 179 S. W. 808.

&:240 (Mo..App.) A switchman held not negligent in kicking aside the coupler on an engine on which he was riding, whereby his foot was crushed, where the engineer failed to heed his signals to stop.—Trowbridge v. Kansas City & W. B. Ry. Co., 179 S.W. 777.

(H) Actions.

&=>252 (Tex.Civ.App.) Taking written statement of plaintiff's claim by agent of defendant employer waives a stipulation in the contract of employment barring the employé's action, unless written notice is given within 30 days.— #" & N. T. Ry. Co. v. Winkler, 179 S. W. Under Rev. St. 1911, art. 5714, a contract of employment of the plaintiff switchman for defendant railway requiring notice to be given in 30 days after injury is void, and will not defeat the plaintiff’s action in spite of failure to give notice.—Id. &=258 (Tenn.) Dismissal of action against master for death of plaintiff's intestate for failure to make declaration more specific, and to designate the names of the vice principals alleged to have been careless and the particular rule violated by defendant, held erroneous.— Lowry v. Southern Ry. Co., 179 S. W. 125. &=264 (Ky.) On pleadings in a servant's action for injury brought against a railroad and its contractor, held, that the issue raised by the pleadings was whether the work was done by an independent contractor.—Mason & Hurst Co. v. Feltner, 179 S. W. 222. &=264 (Mo..App.) Act of employé, though actuated by malice towards the foreman, held negligent as to another employé injured thereby; and, the petition having alleged the character of the act in relation to the injured employé, there was no variance.—Hellriegel V. Dunham, 179 S.W. 763. <>265 (Ky.) In a servant's action for injury, held, that the burden was on the defendant railroad to show that the work on its tunnel was done by an independent contractor.—Mason & Hurst Co. v. Feltner, 179 S. W. 222. An explosion of a boiler does not give rise to a presumption of negligence.—Id. C:265 (Ky.) In an action for injuries to a servant, negligence will not be presumed from the fact that the servant had been injured.— Southern Mining Co. v. Lewis' Adm’r, 179 S. W. 10(57. C:270 (Mo..App.) In a switchman’s action for injuries under the federal Employers' Liability Act, evidence that the couplers, whereby plaintiff was injured, would not meet because they were broken held admissible, although the action was not based on the Safety Appliance Act.—Trowbridge_v. Kansas City & W. B. Ry. Co., 179 S. W. 777. <>274 (Tex.Civ.App.) In the absence of a specific rule forbidding employés to make couplings by going between the cars, evidence of the custom of employés in that regard is admissible to rebut contributory negligence.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691. C>278 (Ky.) Evidence held to show that duty of propping roof of mine was on company, but that under contract this duty devolved upon a contractor whom plaintiff was assisting in the work of removing coal.—Carter Coal Co. v. Hill, 179 S. W. 2. C: 278 (Ky.) In action by an employé of a defendant railroad for injury upon its tracks while a trespasser, evidence held to show that defendant could not have prevented the injury by the exercise of ordinary care after discovering his peril.—Cumberland R. Co. v. Walton, 179 S. W. 245. <>278 (Ky.) A prima facie case of negligence on the part of the master is not made out by proof of the breaking of a new bucket used to carry concrete, without showing the cause of the break or the master's knowledge of defects.— Thomas V. National Concrete Const. Co., 179 S. W. 439. 6:278 (Tenn.) Proof of conformity by employer to customary usage, though making a prima facie case of nonliability, held not conclusive, but rebuttable.—Sanford-Day Iron Works V. Moore, 179 S. W. 373. Q:278 (Tex.Civ.App.) Evidence held sufficient to sustain finding that defendant negligently failed to provide a reasonably safe place for plaintiff to work.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691.

6:281 (Ky.) Evidence, in a car repairer’s action against a railroad for injury on its track, held to show contributory negligence.—Cumberland R. Co. v. Walton, 179 S. W. 245. &:281 (Ky.) In an action by a fireman, hurt when his head came in contact with a car on a siding as he leaned from the engine, his testimony held not to show that he knew of the presence of the car.—Chesapeake & O. Ry. Co. v. Shamblen, 179 S. W. 837. 3:281 (Tex.Civ.App.) Evidence held to sustain finding that plaintiff was not guilty of contributory negligence.--Pecos & N. T. Ry. Co. V. Winkler, 179 S. W. 691. &=285 (Ky.) On evidence in an action for perSonal injury while cutting coal with a punching machine, held, that whether the machine's defective condition was the proximate cause of the injury was for the jury.—Stearns Coal & Lumber Co. v. Calhoun, 179 S. W. 590. &=286 (Ark.) In action by employé injured as result of sham battle between other employés during the noon hour, employer's negligence held a question for the jury.—Barrentine v. Henry Wrape Co., 179 S. W. 328. G>286 (Ky.) In an action for the death of a miner struck by a wild empty mine car traveling downgrade outside the mine, the question of the mine company’s negligence held for the jury.—Southern Mining Co. v. Lewis' Adm’r, 179 S. W. 1067. 6:286 (Mo..App.) In an action by a switchman whose foot was crushed between the couplers of a car which he was attempting to couple, evidence held sufficient to submit to the jury the negligence of the engineer in failing to stop the engine on signal.—Trowbridge v. Kansas City & W. B. Ry. Co., 179 S.W. 777. &=286 (Tex.) Where an engine crew has information giving notice that a car inspector may leave the car on which he rides parallel with the engine's track and put himself in position to be struck by the engine, whether the crew should foresee he would do so was a question of fact for the jury.—International & G. N. R. Co. v. Walters, 179 S. W. 854. In an action by car inspector for injuries received in leaving a “kicked” car and running across a parallel track, where he was struck by an engine, whether its crew had notice that he might do so held for the jury under the evidence.—Id. 6: 288 (Ky.) On evidence in a servant's action for injury while running a coal-punching machine, held, that whether he assumed the risk was for the jury.—Stearns Coal & Lumber Co. v. Calhoun, 179 S. W. 590 S=289 (Ky.) The question, whether the deceased employé of a mine killed by falling stone exercised ordinary care for his own safety, held on the evidence for the jury.—Carter Coal Co. v. Prichard's Adm’r, 179 S. W. 1038. &=289 (Tex.Civ.App.) Question whether a coupler could have been operated from the side of the car so as to make plaintiff switchman guilty of contributory negligence in going between the cars is for the jury.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691. &=291 (Tex.Civ.App.) Instruction in switchman's action for injuries held erroneous for at

tempting to combine contributory negligence and 1.

assumption of risk.—Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691.

IV. LIABILITIES FOR INJURIES TO THIRD PERSONS.

(A) Acts or Omissions of Servant.

G=>301 (Mo..App.) Where defendant’s chauffeur let another person invited to ride with him, take the wheel, such other person’s acts were the acts of the servant for which the defendant was liable.—Slothower v. Clark, 179 S. W. 55. c3=302 (Mo..App.) The driver of defendant's automobile held within the scope of his employment when plaintiff was injured.—Slothower V. Clark, 179 S. W. 55. C>302 (Mo..App.) If a servant is doing the work for which he is employed, the master is liable to a third person for an injury caused by either the manner or the mode of performance. —Hellriegel V. Dunham, 179 S. W. 763. A master is liable for the willful or malicious acts of his servant, where they are done in the course of the employment and within its scope.

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<> 121 (Tex.Cr.App.) A jitney owner who came only within the provisions of an ordinance prescribing a $50 license fee held not entitled to complain of conditions prescribing $75 and $100 license fees.—Ex parte Bogle, 179 S. W. 1193. Where a jitney owner had never applied for a license, he could not complain that the ordinance requiring licenses was invalid because it gave the city authorities arbitrary power to grant or refuse a license.—Id. Where a jitney owner charged with violating an ordinance by operating a jitney without a license complains that requirements of the ordinance that he pay a license fee and give bond amount to a prohibition, the burden is on him to establish his contention.—Id.

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3:352 (Ark.) Under contract, paving district held not required to give contractors quantity of work stated in proposal for bids, but bound to permit them to do all work required while the contract was in force.—Burke V. Board of Improvement Paving Dist. No. 5, 179 S. W. 654. G->354 (Ky.) Contract for a public improvement held to be subject to modification, either by council by valid ordinance, or by act of engineer and paving committee, if duly approved # {# £cil-city of Maysville v. Davis, 179

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6:2362 (Ark.) Finding that paving district was not entitled to damages for delay in completing paving held warranted, where both parties had recognized that the work could not be completed within the specified time.—Burke v. Board of Improvement Paving Dist. No. 5, 179 S. W. 654.

<>365 (Ky.) In the absence of fraud or collusion between the council and contractors, the acceptance of an improvement by the council after having been completed in accordance with the Ordinance and contract is conclusive on property owners.—City of Maysville v. Davis, 179 S. W. 463. &:366 (Ark.) Paving district in paving streets held to have exercised option to do this at contractors’ expense, and the contractors were entitled to the difference between the contract price and the cost to the district.—Burke v. £ #mprovement Paving Dist. No. 5, 179

&=366 (Ky.) The provision of a town’s charter that contracts involving expenditure of more than $100 shall not be made by it except through competitive bidding does not prevent it itself

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