Bushby v. N.Y., L.E. W.R.R. Co.

11 Citing cases

  1. Pitman v. Y. M.V.R. Co.

    158 So. 547 (Miss. 1935)   Cited 8 times

    The railroad could not avoid liability for defective stakes, or lack of stakes, by authorizing the shipper to put stakes in the pockets provided by the railroad. Bushby v. N.Y., etc., Ry., 107 N.Y. 374, 1 Am. St. Rep. 844. The defect was in the car, and the railroad company cannot escape liability by saying that it permitted another to place its appliance in condition to receive the freight, caused by its failure to place proper and adequate stakes on the car.

  2. Port Blakely Mill Co. v. Garrett

    97 F. 537 (9th Cir. 1899)   Cited 3 times

    This very point was in issue in the case of Railroad Co. v. La Rue, 27 C.C.A. 363, 81 F. 148, where the court held that, 'in the case of a low-sided gondola car employed in the transportation of lumber, side standards to keep the load in place, whether such standards are for constant use, and permanently attached to the car by chains, or are unattached and intended for use on a single occasion, are appliances necessary for the proper equipment of the car, and as essential to the safe transportation of the load as is a proper car body. These side standards, to all intents and purposes, are part of the car, '-- citing, to the same effect, Bushby v. Railroad Co., 107 N.Y. 374, 14 N.E. 407. We discover no error in the instructions or in the rulings of the court below.

  3. J.J. Newman Lumber Co. v. Cameron

    179 Miss. 217 (Miss. 1937)   Cited 21 times
    In Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571 (1937), this Court had before it a judgment in favor of plaintiff for $30,000 for personal injuries.

    The contention of the appellee was and is that said chisel bar was inherently — within itself — unfit, unsuitable, improper and dangerous with which to do the particular work in hand and then and there required of him, and that it never was a fit, suitable and reasonably safe tool with which to do said work, because it was too short, and necessarily subjected him to danger all the time when being used in the manner necessary to use it in doing said work, and we respectfully submit that the simple tools rule is not involved. 1 Bailey's Personal Injuries, page 347; McIntyre v. Boston M.R. Co., 163 Mass. 189, 39 N.E. 1012; Bushby v. New York, etc., 107 N.Y. 374; Port Blakely Mill Co. v. Garrett, 97 Fed. 537; Coats v. Boston Maine R. Co., 153 Mass. 297; Laning v. New York Central R. Co., 49 N.Y. 521; Krueger v. Bartholomy Brewing Co., 94 App. Div. 58, 97 N.Y.S. 1054. The law is settled in this state that it is the duty of the master to exercise reasonable care to provide and furnish his servant with reasonably fit, suitable, proper and safe tools, instrumentalities and appliances with which to do the particular work required of his servant.

  4. St. Pierre v. Foster

    64 A. 723 (N.H. 1906)   Cited 4 times

    In short, the facts disclosed by the examination of the belt have no tendency to prove that an unsuitable lace was used, or that the lacing was unskillfully done, or that the end of the lace was loose so long prior to the accident that the defendants would have discovered it if they had used ordinary care for the plaintiff's safety. Consequently, the cases on which the plaintiff relies (Spicer v. Company, 138 Mass. 426; Bushby v. Railroad, 107 N.Y. 374;. Flanigan v. Company, 63 N. J. Law 647; Toledo etc. Ry. v. Conroy, 68 Ill. 560; Munch v. Railway, 75 Minn. 61; Union Pacific Ry. v. Daniels, 152 U.S. 684) are not in point; for in all of them the evidence derived from an examination of the appliance which caused the servant's injury tended to prove that it was constructed from unsuitable material, or that the work of constructing it was unskillfully done, or that the defect which caused the servant's injury originated so long before the accident that the master would have known of it in time to prevent the accident if he had used ordinary care for his servant's safety. Since there is no evidence from which it can be found either that the defendants ought to have anticipated that this lace would pull out as it did, or that they could have done anything after it did pull out to prevent the accident, it cannot be found that their failure to inspect the belt was the legal cause of the plaintiff's injury, even if it can be found they fa

  5. Wallace v. R. R

    54 S.E. 399 (N.C. 1906)   Cited 5 times
    In Wallace v. Seaboard Airline R. Co., 141 N.C. 646, 54 S.E. 399, 13 L.R.A. (N.S.) 384, it was held that the case was properly submitted to the jury for them to decide whether the evidence of customary use for a secondary purpose was sufficient "to fix upon defendant notice thereof."

    And we are unable to see that, as a question of law, the respondent was guilty of contributory negligence in using the means provided for ascending from his work to the wharf." Bushby v. R. R., 107 N.Y. 374; Coates v. R. R., 153 Mass. 297. A large number of cases are cited by counsel for plaintiff and defendant showing some divergence of opinion in the application of the principle to the peculiar facts of each case. Mr. Labatt, in his valuable work on Master and Servant, reviews the cases and concludes: "If new functions are imposed upon an instrumentality by the master himself, or his representative, and the servant is thereby exposed to undue risks, the master must answer for the injury resulting from those risks, and cannot excuse himself by showing that the instrumentality was a suitable one for the performance of the work for which it was originally supplied. The master's acquiescence in the use of an appliance for some purpose other than that for which it was intended puts him in the same (661) position as if the appliance had been originally furnished for that purpose.

  6. Kerrigan v. Market-Street Railway Co.

    138 Cal. 506 (Cal. 1903)   Cited 8 times

    They were a part of the appliance just as much as was the bottom of the car or its wheels. (Bushby v. New York etc. R. Co., 107 N.Y. 374;Dougherty v. R.R. Co., 45 N.Y. St. Rep. 154; Ryan v. New Yorketc. R.R. Co., 88 Hun, 269; Ford v. Lake Shore etc. Co., 117 N.Y. 638; McIntyre v. Boston etc. R.R. Co., 163 Mass. 189.

  7. St. L. S. F. Ry. Co. v. McClain

    80 Tex. 85 (Tex. 1891)   Cited 59 times

    The charge is a clear statement of the law applicable to the facts in this case. Rost v. Railway, 76 Tex. 168; Railway v. Wright, 62 Tex. 515; Railway v. Suggs, 62 Tex. 323 [ 62 Tex. 323]; Railway v. Silliphant, 70 Tex. 623 [ 70 Tex. 623]; Railway v. McNamara, 59 Tex. 256 [ 59 Tex. 256]; Freiburg v. Johnson, 71 Tex. 558 [ 71 Tex. 558]; Railway v. Smith, 65 Tex. 167; Busby v. Railway, 107 N.Y. 374; 1 Am. S. R., 844; Railway v. Stuart, 57 Tex. 166; 63 Tex. 333; Rule 26 of the Supreme Court; Railway v. Redeker, 67 Tex. 189 [ 67 Tex. 189]; Railway v. James, 73 Tex. 13. 8. Where there is evidence to support the verdict, or where the evidence is conflicting, it is within the peculiar province of the jury to pass upon it, and their verdict will not be disturbed. Railway v. Ormond, 64 Tex. 485; Railway v. Davidson, 68 Tex. 370; Railway v. Smith, 65 Tex. 167; Railway v. Silliphant, 70 Tex. 623 [ 70 Tex. 623]; Wills Point Bank v. Bates, 72 Tex. 137 [ 72 Tex. 137]; Railway v. Kindred, 57 Tex. 491.

  8. Sutter v. N.Y. Central H.R.R.R. Co.

    79 App. Div. 362 (N.Y. App. Div. 1903)   Cited 4 times

    This duty it could not delegate, and whoever was engaged in its performance was acting as the alter ego of the defendant. ( Bushby v. N.Y., L.E. W.R.R. Co., 107 N.Y. 374; Goodrich v. N.Y.C. H.R.R.R. Co., 116 id. 398; Eaton v. N.Y.C. H.R.R.R. Co., 163 id. 391; Bailey v. Rome, W. O.R.R. Co., 139 id. 302; Coppins v. N.Y.C. H.R.R.R. Co., 122 id. 557.) The burden was upon the defendant to inspect the engine, and if it intrusted the work to Burns, its engineer, he was engaged in performing the primary obligation which rested upon it as master, and which work must be performed before it was in a situation to invoke the rule that Burns and Sutter were co-employees. The fact that Burns was an engineer does not alter this principle. It is the character of the service performed, not the grade of the employee, which determines this question.

  9. Hanrahan v. Brooklyn Elevated R.R. Co.

    17 App. Div. 588 (N.Y. App. Div. 1897)   Cited 2 times

    Doing v. N.Y., Ontario Western R. Co. ( 151 N.Y. 579) was a case where cars were improperly and suddenly shunted into a repair shop, where the employee had no view of the exterior tracks, and no opportunity to see whether or not cars were coming in. In Bushby v. N.Y., L.E. W.R.R. Co. ( 107 N.Y. 374) it appeared that a stake on a lumber car, used to hold lumber in its place, broke in going around a curve, and that it was decayed, spongy and unsound, and that this defect was apparent upon inspection, and the court held the defendant liable for failure to supply proper stakes. Pantzar v. Tilly Foster Iron Mining Co. ( 99 N.Y. 368) was a case where a workman was injured by the fall of a mass of rock. It appeared that there had been a large and increasing crack in the rock and that the attention of the superintendent had been called to it before the accident, and that he had been warned of its dangerous character, but took no precautions to support it.

  10. Felice v. N.Y. Central H.R.R.R. Co.

    14 App. Div. 345 (N.Y. App. Div. 1897)   Cited 10 times

    Just how that duty should be performed in any given case cannot be determined as a matter of law. It may be that, under certain circumstances, the work is such and so done as to require the master to make rules for the conduct of the employees, so that they may be protected from the dangers which approach them. ( Eastwood v. Retsof Mfg. Co., 86 Hun, 91.) It may be that some other means may properly be employed to give the servant the warning he is entitled to; but whatever means are employed, it is the duty of the master to employ them, and that duty cannot be delegated to any other person; but in whatever way it may be exercised it remains the duty of the master, and the person appointed to perform it is the alter ego of the master, for whose negligence the master is liable. ( Bushby v. N.Y., L.E. W.R.R. Co., 107 N.Y. 374; Pantzar v. Tilly Foster Iron Mining Co., supra.) As to the performance of that kind of duty, the person intrusted with it, if anybody is so intrusted, is not a co-servant of another employee, but he is, for that purpose, the master, and his act and his neglect is the act and neglect of the master himself.