he permitted such infant to operate the car alone in violation of law. Mes- sersmith v. American Fidelity Co., 232 N. Y. 161, 133 N. E. 432, aff'g 187 N. Y. App. Div. 35, 175 N. Y. Supp. 169 (1921) .21:500-508
Annotation: Employees within Fed- eral Employers' Liability Act.....
21:1-37 Annotation: Railroads to which Federal Employers' Liability Act ap- plicable..... 21:519-533
1. Employment in-Pump operator serving interstate and intrastate trains indiscriminately.
An employee of a railroad engaged in both interstate and intrastate com- merce whose duties were to attend a signal tower and also a water-tank which was filled by a pump run by a gasoline engine was, while engaged in operating the engine to pump water to be used for both interstate and intra- state trains, employed in interstate commerce, and a suit for damages re- sulting from an explosion of gasoline was properly brought under the Fed- eral Employers' Liability Act. Erie R. Co. v. Collins, 253 U. S. 77, 64 L. Ed. 790, 40 Sup. Ct. 450 (1920)..
2. Preliminary movement Character as affected by nature of final move- ment.
A preliminary movement of freight which is part of a larger movement and thus a part of foreign commerce as between shipper and consignee, shares in the character and quality of the movement which succeeds it for the purpose of determining the relation between shipper and carrier or between carrier and servant. Cott v. Erie R. Co., 231 N. Y. 67, 131 N. E. 737, aff'g 189 N. Y. App. Div. 571, 179 N. Y. Supp. 488 (1921) ..21:519-533
3. Terminal railroad as instrumentality of foreign commerce.
A terminal railroad which switches indiscriminately foreign and domestic cars is itself an instrumentality of in- terstate or foreign commerce. Cott v. Erie R. Co., 231 N. Y. 67, 131 N. E. 737, aff'g 189 N. Y. App. Div. 571, 179 N. Y. Supp. 488 (1921)....21:519-533
1. Res adjudicata-Price of goods, in action by purchaser for loss of car- rier's receipt.
Where the title to goods passed be- fore the seller was instructed to deliver them to an express company, a judg- ment in favor of the seller for the contract price was not res adjudicata in an action in tort by the purchaser against the seller for negligence in los- ing the carrier's receipt for the goods. Bowen, Inc., v. G. R. Armstrong Manu- facturers' Supplies, Inc., Mass. 135 N. E. 556 (1922)..
2. Injury to third person-Liability of landlord-Defective elevator.
To charge owners of leased premises with responsibility for the existence of an alleged defective elevator, ele- vator well or hoistway it is necessary to allege and prove that the conditions complained of existed at the time of the letting or that the owners had covenanted to repair or remedy the condition or nuisance complained of. Marcovitz V. Hergenrether, 302 Ill. 162, 134 N. E. 85 (1922)....21:739-755
- Elevator well not guarded as required by ordinance-Sufficiency of declaration.
In an action against the owner of a leased building to recover for the death of a third person due to his falling into an elevator well which was not guarded as an ordinance required, the declaration which charged simply that the premises were owned and leased by defendants on a certain date; that on that day the ordinance was in full force; that on the same day deceased fell into the shaft and was killed while unloading materials into the elevator, and failed to allege as to when the building was leased, that the nuisance existed at the time it was leased or that there was a covenant to repair, failed to charge any legal duty upon the owners to deceased. Marcovitz v. Hergenrether, 302 Ill. 162, 134 N. E. 85 (1922). .21:739-755
fects in an elevator in a leased build- ing, against the owners and lessees, where there is no allegation of any facts that show or tend to show that deceased was on the premises by the permission or at the instance of any of the defendants or that he had a legal right to be on the premises, he was, under the declaration, a mere li- censee or trespasser to whom defend- ants owed no duty except not to wil- fully injure him, and, in the absence of an allegation of wilfulness the dec- laration is insufficient. Marcovitz v. Hergenrether, 302 Ill. 162, 134 N. E. 85 (1922) .21:739-755
6. Liability of owner of baseball park for injury to patron of lessee be- cause of defective premises.
Where the owner of such baseball park either leases, lets, or permits some other person to use said park for the same purposes for which it was used by such owner, and at the time of let- ting or permitting the other person to so use such park the seats are in a de- fective condition, and this is known to the owner, and on account of this de- fective condition of the seats they col- lapse and some of the people occupying the seats are thereby injured, such owner is liable in damages to the per- son or persons so injured. Under this state of facts, the fact that the owner of such park donates the use of the same or lets it without any monetary compensation paid to such owner by the person so using it does not thereby make the patrons of such park licensees on the premises and change the liabil- ity of the owner. Tulsa Entertainment Co. v. Greenlees, Okla. 205 Pac. 179 (1922) .21:891-906
7. Lease for year instead of from month to month-Sufficiency of evi- dence.
In an action for damages against the owner of property, evidence held to show that the property was leased for
Section 206 (f) of the act of Con- gress passed February 28, 1920 (Fed. Stat. Ann. Supp. 1920, p. 79), which provides that "the period of federal control shall not be computed as part of the periods of limitations in ac- tions against carriers or in claims for reparation to the Commission for causes of action arising prior to fed- eral control," applies only to fed- eral courts. Georgia Southern & F. Ry. Co. v. Smiley, Ga. 108 S. E. 273 (1921) .21:164-170
The court erred in overruling the de- murrer to the petition. Georgia South-
Annotation: Employees within Fed- eral Employers' Liability Act..21:1-37
Annotation: Effect of failure of railroad employee working upon or un- der car to set warning signals upon night to recover for injuries. 21:103-111
Annotation: Statutory and common- 'aw liability for death or disability due to disease proximately caused by em- ployment . 21:200-218 Annotation: Injury to railroad em- ployees by explosion.......21:334-369
Annotation: Injury to shipper or consignee or their employees while loading or unloading shipment due to defective condition of railroad car or its appliances.. 21:371-387 Annotation: Effect of provisions in compensation acts respecting liability of third persons for negligence caus- ing injury to employee..... 21:401-431
.21:672-684 Annotation: Nature and extent of liability under the Federal Safety Ap- .21:756-792 pliance Act Annotation: Common-law actions against master for injuries by his wil- ful, deliberate or intentional act to employee subject to compensation acts 21:856-861
Annotation: Nature and extent of employer's duty as to providing safety appliances for dangerous machinery
under safety appliance act not pre- | under 16 years of age, a paragraph scribing form of appliance..21:907-949
Sufficiency of pleading.
In an action for injury to plaintiff's eye by a particle of steel flying from braces which plaintiff was helping to cut, allegations that he was employed by defendant and subject to the au- thority of defendant's foreman who or- dered him and his companions to "trim up braces" but which failed to allege that the foreman told him to use a cold cut or a sledge hammer, the tools being used at the time, were not sufficient to relieve plaintiff from as- sumption of risk under Burns' 1914, § 8020 C; Acts 1911, c. 88, p. 145, § 3. Emerson Brantingham Co. v. Growe, Ind. 133 N. E. 919 (1922).... 21:907-949
of defendant's answer alleging con- tributory negligence does not present a complete defense, as contributory negligence is not a defense when the employment was unlawful. Emery v. Jewish Hospital Ass'n, 193 Ky. 400, 236 S. W. 577 (1921).......21:302-333 5. - Failure to display blue warn- ing signal-Effect.
Failure of a car inspector to comply with a rule requiring the placing of warning signals when inspecting cars would constitute only contributory neg- ligence which would not defeat recov ery but simply reduce the amount of the judgment. Dahlen v. Hines, 275 Fed. 817 (1921)..... .21:103-111
- Negligence of employer-Aban- donment of rules for protection of employees Blue warning signals upon railroad cars undergoing inspec- tion.
Where the compliance with a rule requiring the display of a blue signal on cars undergoing inspection had re- sulted in congesting traffic in railroad yards, and employees, including plain- tiff, were instructed by the yards fore- man not to use such signals when in- specting outgoing trains, which instruc- tions were followed, and the practice was known to and sanctioned by the yards foreman and chief inspector and the general supervisor of the freight department was chargeable with notice of such practice, the question whether the rule requiring signals had been abandoned was for the jury. Dahlen
9. -Duty to furnish safe appliance -Admissibility of evidence of ap- pliance not in general use.
In an action by a servant for injury to his eye by steel flying from a cold cut and a sledge hammer used in cut- ting braces, it was error to admit tes- timony by plaintiff that such an injury could be prevented by use of a screen devised by one of his attorneys after the injury but which was not shown to have been in use. Emerson Brant- ingham Co. v. Growe, Ind. 133 N. E. 919 (1922)..
Instruction in language of
tiff's eye by steel flying from a cold cut and sledge hammer with which he and other employees were trimming braces, averments that the foreman, with knowledge of the danger of steel flying from such tools, ordered and directed plaintiff to assist other work- men to trim the braces and that plain- tiff did not know of the danger, were insufficient, in the absence of averment that anybody directed plaintiff how to do the work or that the foreman had any knowledge of plaintiff's ignorance of the danger. Emerson Brantingham Co. v. Growe, Ind. 133 N. E. .21:907-949
Explosion of acetylene gas
Where the jury was warranted in finding that the leaving of an acetylene gas generator in operation on an en- gine which was to be repaired was the proximate cause of an explosion caus- ing the death of an employee engaged in repairing the engine, the employer would be liable whether the gas was escaping from the generator or whether deceased inadvertently disconnected the hose so that the gas was permitted to escape. Lewis v. Davis, Utah 201 Pac. 861 (1921).... 21:334-370
Failure to warn servant of danger-Pleading.
In an action by an employee for in- jury to his eye by a particle of steel flying from work to which he was transferred from his regular work, al- legations that the foreman knew that pieces of steel would fly from the work, but that plaintiff was ignorant of such fact and inexperienced in the work, and that defendant failed to warn him of the danger, sufficiently charged negligence to make out a case at common law as against a general demurrer. Emerson Brantingham Co. v. Growe, Ind. 133 N. E. 919 (1922) 21:907-949
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