14.

- Proof of different method
of work from that by which injury
was alleged.

In an action for injury to plaintiff's
eye while trimming braces with a cold
cut and sledge hammer, no issue was
presented as to the possibility or de-
sirability of trimming the braces with
shears, and it was. error to permit
plaintiff to introduce evidence that
witnesses had trimmed such braces
with shears but never on the anvil,
where there was no allegation that
there was a safe way to do the work
and that the employer chose a dan-
gerous one. Emerson Brantingham Co.
v. Growe, Ind.
(1922)

15.

-

133 N. E. 919
.21:907-949

Federal Employers' Liability
Act-Fellow-servant rule-Applica-
bility between employees of railroads
operating a terminal road jointly.
In a joint action for the death of a
railroad conductor against his em-
ployer and another railroad, which to-
gether maintained the terminal road
upon which the accident occurred,
while deceased was engaged in foreign
commerce, the fellow-servant rule was
not available because the Federal Em-
ployers' Liability Act excluded it as
to the employer, and deceased was not
a fellow-servant of the employees of
the other defendant. 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

Maintenance of roadbed and
track-Proximate cause-Sufficiency
of evidence.

Evidence upon the issues referred to
examined, and held proper to submit
the same to the jury; held, further,
the evidence upon the same sufficient
to sustain a verdict for the plaintiff
if submitted to the jury on proper in-
structions. Sheean v. Hines, Neb.
184 N. W. 934 (1921)...21:568-633

-

20.

-

Presumption arising from
leaving switch open without warn-
ing.

Where two railroads maintained a
terminal road for the interchange of
cars and an employee of one of the
roads was killed when his engine ran
into a switch left open without warn-
ing, it was not error, in an action
against both railroads, to instruct that

Where, in an action for damages
against the Director General of Rail-
roads, for the death of plaintiff's de-
cedent, caused by the alleged negligent
maintenance of defendant's roadbed
and track, the evidence as to neg-
ligence and the proximate cause of the
accident is sharply conflicting, al-
though the defendant's testimony may
strongly tend to overcome that of the
plaintiff, yet if the evidence upon these
issues, taken as a whole, is such as
from which different minds may hon-
estly draw different inferences and
conclusions, and the testimony is suf-
ficient to sustain a verdict for the
plaintiff, if one be found in her favor,
the situation presents one proper to
be submitted to a jury. Sheean v.
Hines, Neb.
184 N. W. 934
(1921)
21:568-633

22.

-

-

Safe place to work-Acety-
lene gas generator on locomotive un-
dergoing repairs.

A locomotive upon which an acety-
lene gas generator had been left in a
condition so that an explosive gas was
being generated and was leaking, or
was apt to be caused to leak inad-
vertently by an employee engaged in
repairing the engine, constituted an
unsafe place to work for a repair man
having in his hand a torch such as
was customarily used in such work.
Lewis v. Davis, Utah
861 (1921)

23.

201 Pac.
.21:334-370

Shunting cars against stand-
ing cars at unusual speed.
The shunting of a train of 16 loaded
cars downgrade along a track in rail-

road yards at a speed seven times that
customarily used in such operations,
so that they struck standing cars with
force sufficient to drive in and break
off drawbars, was sufficient evidence
to warrant submission to the jury of
the question of negligence of defend-
ant in an action for injuries received
by an employee who was engaged in
inspecting the standing cars. Dahlen
v. Hines, 275 Fed. 817 (1921)......
21:103-111

24.

Pleading-Sufficiency of alle-
gations-Duty to furnish safety de-
vices not required by statute.

In the absence of a statute requiring
an employer to furnish goggles to pro-
tect the eyes of employees, or of any
allegation of facts to show that any
duty to supply them had been imposed
by custom or contract, allegations that
plaintiff's eye was injured by a par-
ticle of steel flying from his work and
that it was practicable for the em-
ployer to supply goggles or some other
device to prevent such injuries, did not
make out a cause of action for negli-
Emerson Brantingham Co. v.
gence.
Growe, Ind., 133 N. E. 919 (1922)
21:907-949

25.

-

Admissibility of support-

ing evidence.

In an action by an employee against
his employer for injuries to his eye by
a particle of steel flying from work he
was assisting in doing, averments that
plaintiff was ordered by his foreman
to assist in the work, and that defend-
ant failed to provide "goggles or some
other device" were not material to his
common-law right of action and did
not authorize the introduction of evi-
dence of the facts so alleged nor the
recovery of damages based thereon.
Emerson Brantingham Co. v. Growe,
133 N. E. 919 (1922)....
21:907-949

-

Ind.

28.

-

-

132

.21:668-671

Permitting employees to play
baseball on premises as negligence
-Sufficiency of evidence.

Testimony of a woman who was in-
jured during the noon hour while on
the street by a baseball coming from
her employer's premises where other
employees habitually played ball dur-
ing such time, that she had been in
defendant's employ about two years,
that she had seen men and boys play-
ing at such place nearly every day dur-
ing the summer and that she had seen
the ball come out into the street two
or three times, did not establish neg-
ligence on the part of defendant in
permitting baseball to be played on its
premises. Harrington v. Border City
Mfg. Co., Mass. 132 N. E. 721
(1921)
.21:668-671

Annotation: Liability for damage to
streets, highways or bridges by vehicle
or heavy load....
.21:138-154
Annotation: Conviction for viola-
tion of law as affecting credibility of
witness in action for negligence in
operation of automobile....21:219-221

Annotation: Liability of owner of
automobile for death or injury due to
negligent operation of car by member
of his family
.21:242-274

Annotation: Lack of legal registra-
tion of vehicle as affecting action by
driver, owner or occupant for loss or
injury, or recovery for loss or dam-
age to others

..21:509-517
Annotation: Use of side curtains or
windshield restricting view of driver
of automobile as affecting negligence
21:794-806

Annotation: Violation by driver of
motor vehicle of statute or ordinance
as to speed as constituting negligence
21:956-975

Annotation: Liability of municipal-
ity for injury by vehicles, motor cars,
etc., owned or operated by it. 21:977-988

1. Injury in collision-Driving without
license-When immaterial.

In an action for damages to plain-
tiff's truck by the collision of defend-
ant's trolley car with it, as it was
standing in front of a garage to which
it had been towed after being dis-
abled and into which it was about to
be pushed by another truck, the fact
that plaintiff's driver was not licensed
as required by law was immaterial,
where such driver was not upon the
truck and had nothing to do with its
position at the time of the collision.
Dewhirst v. Connecticut Co., Conn.

2.

-

114 Atl. 100 (1921).....21:509-518

- When in operation.

A motor truck which was disabled
and had been towed to a garage and
was being pushed into the garage by
another motor truck was, while the
other truck had backed away to get

a new position, neither in operation
nor making such a stop as automobiles
ordinarily make in the course of or
fairly incidental to their operation,
within the meaning of a statute pro-
viding that no recovery shall be had
in the courts of the state for injury
to the person or property of the owner
of a motor vehicle while it was being
operated upon a highway by an un-
licensed driver or while the vehicle
was not registered as required by law.
Dewhirst v. Connecticut Co., Conn.
- 114 Atl. 100 (1921)....21:509-518

3.

-

Evidence-Burden of pleading
and proving registration of car and
licensing of driver.

Under a statute prohibiting recov-
ery by the owner of a motor vehicle
for injuries to it while it was being
operated upon a highway without be-
ing registered, or while being driven
by an unlicensed driver, the burden
is upon the owner to allege and prove
that his car was registered and was
being driven by a licensed driver, in
an action for damages for injuries to
such car by collision. Dewhirst v.
Connecticut Co.,
114 Atl.
100 (1921)
21:509-518

4.

Conn.

- Recovery for loss of use.
In an action for damages for injuries
to an automobile in a collision, the
owner is entitled to recover the value
of the use of the car during the period
necessary for its repair, in addition
to the damage to the car. Hawkins v.
Garford Trucking Co., Inc., Conn.
114 Atl. 94 (1921)......21:72-102

To enable a jury to determine the
amount of damages to be allowed for
the loss of use of an automobile dur-
ing the period necessary for its re-
pair following a collision, there must
be some evidence of the pecuniary
value of that use, and an instruction
that, if the circumstances and extent
of the ordinary use of the car by its
owner were established by evidence,
the jurors might, according to their
experience and judgment, fix a proper
sum as damages for the loss of such
use, was erroneous. Hawkins v. Gar-
ford Trucking Co., Inc., Conn. -
114 Atl. 94 (1921)

.21:72-102

7. Injury to driver-Contributory neg-
ligence Violation of speed statute—
Question for jury.

The question whether the plaintiff
in exceeding the statutory speed limit
and in failing to see another car in
time to prevent a collision was guilty
of negligence contributing to his in-
jury is held to have been one of fact,
properly submitted to the jury. Hughes
v. Hudson-Brace Motor Co., Kan.

8.

207 Pac. 795 (1922)....21:956-976

Effect of ordinance giving ve-
hicle right of way according to di-
rection of movement-Sufficiency of
evidence.

Where by ordinance a vehicle ap-
proaching a street intersection from
one direction is given the right of way
over one approaching it from another,
the driver of an automobile from the
disfavored direction is not required
under all circumstances, before at-
tempting to cross, to await the passage
of every car he can see coming from
the other direction which by any pos-
sible burst of speed might reach the
crossing of their paths ahead of him.

It is not negligence as a matter of law
for a driver from either direction to
undertake to cross the intersection
ahead of a car which is at such a dis-
tance that he has ample time to get
across, provided the other car does
not exceed the highest speed he should
reasonably anticipate. And it is held
that in the present case the evidence
warranted a finding that the defend-
ants' car was coming so rapidly that
the plaintiff, in the exercise of due
diligence in that regard, underesti-
mated its speed and reasonably be-
lieved that he had abundant time to
cross until it was too late for him to do
anything to avoid a collision. Hughes
v. Hudson-Brace Motor Co., Kan.
207 Pac. 795 (1922)....21:956-976

-

---

216 Mich. 299, 185 N. W. 792 (1921)
21:138-154

-

11a. Right of use by manufacturers
to test trucks-Effect upon right of
action by township.

Conceding that manufacturers have a
lawful right to test their trucks by
driving them upon the public highways
in the ordinary manner in which such
trucks are driven in the transportation
of persons and property, such right can
be no defense to an action for dam-
ages brought by a township for in-
juries to its roads where the acts of de-
fendant in destroying and injuring the
highways in question were character-
ized by reckless, wilful and wanton
misconduct and disregard of the rights
of the township. Struble v. Republic
Motor Truck Co., 216 Mich. 299, 185
N. W. 792 (1921). . . . . . . . . .21:138-154
12. Injury to passenger-Contributory
negligence-Admissibility

of evi-

dence Custom to drive with side
curtains up.

In an action to recover damages for
personal injuries received in a colli-
sion between a street car and an au-
tomobile in which plaintiff was riding
as a passenger on a dark, misty night,
it was proper to permit plaintiff's hus-
band, who was driving the car, to tes-
tify that it was customary and usual
for automobiles to be driven with the
side curtains up under the conditions
existing at the time of the accident.
Waring v. Dubuque Elec. Co., Iowa
186 N. W. 42 (1922)....21:794-806