Commentaries on the Law of Negligence in All Relations: (including a Complete Revision of the Author's Previous Works on the Same Subject)

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Bowen-Merrill Company, 1905
 

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War vessels
10
Steamvessels having rafts in tow 6773 Small fishing vessels
11
Use of deceptive lights 6775 Absence or improper position of lights must have been proximate cause of collisionBurden of proof
12
SOUND SIGNALS SECTION 6778 Sound signals are given by short blasts on the whistle
14
Vessels meeting head on or nearly head on 6780 Overtaking vessels 6781 Vessels not under wayVessels leaving docks
15
LOOKOUTS
19
SailingVessels Meeting or Crossing SS 67966892
27
Steam and Sailing Vessels Meeting
33
Further of duty of steamvessel to avoid sailingvesselPresump
34
Overtaking Vessels
40
MOORED VESSELS SECTION 6840 Duty of vessels navigating in vicinity of moored vessels
47
Collision between departing vessel and moored vessel 6842 Mooringlines 6843 Vessel breaking away from her mooring
48
General duties of moored vessel 6845 Duty where moored alongside other vessels
49
Vessels lying at end of pier 6847 Vessel moored so as to project beyond end of pier or dock
50
Fault where vessel moored in an exposed position 6849 Hawsers stretched across slip 6850 Presumption of fault ARTICLE III OTHER VESSELS No...
51
Dredging and wrecking vessels and floating elevators
53
Tugs and Tows
54
Rule where steamship encounters encumbered tug 6859 Tug not an insurer of tow against marine perils
55
Tug not servant nor agent of
56
Joint liability 6862 Adequacy of tug and fitness of
57
Duty of rival tugs racing after towInterference by rival 6864 Care as to makeup of
59
Shifting tow 6866 Length of hawser
60
Use of bridle
61
59 Care with reference to navigation when channel is filled with mcv
62
Care in attaching to tow and starting on voyage
63
Care of tow as dependent on soundness of her condition 6873 Care with reference to overhead bridges 8874 Collisions between different vessels in t...
64
Liability for injury to tow attached without knowledge of
65
SS 68576879
68
Vessels in harbors and channels held to the observance of the gen eral navigation rules
69
Further of the applicability of the general rules 6887 The rules in their application to overtaking vessels 6888 Channel defined 6889 Right of
70
Speed of vessels
71
Speed must be moderate to avoid danger from suction and swells
72
Navigation with reference to slips and wharves
73
Vessels turning in stream
74
Navigation around bends in rivers and channels
75
Navigation of East River
76
Navigation through Hell Gate
77
Collisions with rowboats 6898 Care in navigation with reference to bridges
78
Collision with gasmain in riverbed 6900 Launching vessels 6901 Vessels breaking loose from ways 6902 Taking on pilots C
80
FERRYBOATS SECTION 6906 Subject to general rules of navigation 6907 Entering and leaving silp
81
CANALBoats SECTION 6910 Starboardside rule extends to canals 6911 Overtaking boats 6912 Tying up canalboats
84
Fog Signals
85
General duty of preparation for emergencies
91
Other Doctrines and Theories
96
09
97
CHAPTER CLXXX
100
Cases where division of damages will be allowed
101
Rule where more than two vessels are involved 6947 Burden of proving mutuality of fault where fault of one is manifest 6948 Method of apportioni...
102
What damages are included
103
Rights of the cargo under the Harter act 6951 Inevitable accidents
104
CHAPTER CLXXXI
106
What is meant by privity or knowledge 6958 Securing limitation by surrendering vessel
108
Interest of owner in freight pendingMeaning of terms 6960 Formal abandonment not required in case of total loss 6961 Limitation applies to all mari...
109
Waiver of right to claim benefits of limitation act 6963 Time at which value of vessel and freight will be determined
110
Where proceedings may be instituted 6965 Insurance not an interest in the vessel
111
THE HARTER ACT SECTION 6968 Scope of act 6969 Not applicable to passengers or baggage 6970 Due diligence to make vessel seaworthy 6971 ...
112
Burden of proof of seaworthiness 6973 Faults in navigation or management
114
Vesselowner adjudged free from liability under Harter Act cannot demand contribution
115
State of the Law Previous to Lord
119
Judgment as Bar to Another Action SS 70337035
126
Action in another State if statute is not dissimilar
132
Jurisdiction of State courts for injuries on the seas
138
WHEN ACTION TO BE COMMENCED
144
Further of the effect of the death of the beneficiary
150
DISTRIBUTION OF DAMAGES AND ASSIGNMENT
156
CHAPTER CLXXXIV
159
Personal representativeDefinition
160
Special and ancillary administrators
161
Beneficiaries and not personal representatives must sue in some jurisdictions
162
Beneficiary allowed to sue where no personal representative ap pointed 7047 Heir or personal representative may sue in California
163
Who are next of kin 7049 Dependent next of
164
Pecuniary benefit from life of deceased as a condition to recovery
166
Death of children of tender years 7052 Widow entitled to entire recovery under certain circumstances 7053 Commonlaw wife
168
Effect of divorce and separation 7055 Parents and collateral relatives not included in term heirs
169
Whether father or mother meant by term parent 7057 Who included in the term childrenIllegitimate children
170
Posthumous child 7059 Effect of emancipation of child
171
Parties in actions for felonious killing 7061 Parties in actions for death in mines
172
Identity of claimants 7063 Persons liable
173
CHAPTER CLXXXV
176
Injury received at hands of fellow servant
177
Deceased must have been free from contributory negligence
178
Selfdefense inevitable accident command of
179
Existence of persons having better right of action
180
CHAPTER CLXXXVI
182
Constitutional provisions against limitation of recovery
183
CHAPTER CLXXXVII
216
PLEADING SECTION 7114 Existence of beneficiaries
217
Whether particular acts of negligence must be pleaded
218
Averment of damages and pecuniary interest in life of deceased
219
Dependency of beneficiaries 7118 Pleading statuteAverment that deceased could have maintained action if death had not ensued 7119 Loss of services
220
Pleading the fact that deceased was unmarried 7121 Averment of survival or of immediate or instantaneous death
221
Custody of children in care of another 7123 Joinder of causes of action
222
Exemplary damages must be demanded 7125 Amendments
223
EVIDENCE SECTION 7129 Evidence relating to deceased 7130 Evidence of earnings under punitive statutes 7131 Professional income not to be pr...
224
Number age and sex of children
228
Moral character of beneficiary 7137 Evidence to prove marriage of parties 7138 Wealth and standing of defendant
229
Rules of evidence where action is criminal in form 7140 Presumptions and burden of proof in actions for deathHabits of deceased
230
INSTRUCTIONS SECTION 7144 General rules 7145 Instruction where portion of plaintiffs suffered no pecuniary in jury 7146 Instruction for death...
231
CHAPTER CXC
246
Doctrine of exemplary damages qualified by some and wholly re pudiated by other courts
247
Right of recovery of exemplary damages depends on motive
248
Willful and wanton injuryIllustrations
249
Gross negligence
251
Further of gross negligence 7169 Award and amount of exemplary damages within the discretion of the jury 7170 Exemplary damages proper only ...
252
Financial condition of defendant 7172 Gross negligence in sale of drug
253
Malpractice of physicians 7174 Liability in the case of a private corporation or employer for negli gence of agents or servants
254
Ratification by corporation 7176 Further of ratification
255
Municipal corporations not generally liable 7178 Lessor of a railroad may be liable for acts of lessee
257
The rule in its application to carriers generally 7180 Wrongful ejection of passenger
258
Further of ejection of passengerMistake
259
Failure to stop trains
260
Negligence in connection with boarding and alighting from cars 7184 Refusal to sell tickets 7185 Expulsion of child travelling on halffare ticket
262
Dishonor of railroad tickets 7187 Expenses of litigation
263
CHAPTER CXCI
264
Proximate result a question of fact 7195 Remote speculative or conjectural damages
265
Cases where damages have been held remote or speculative
266
DUTY TO LIGHTEN CONSEQUENTIAL DAMAGES
277
Mitigation of Damages 8 72157225
281
Other avenues of employment open to injured person
283
Destruction of growing crops 7237 Destruction of grass and hay 7238 Destruction of trees 7239 Injury to reputation from sale of plants injured by n...
286
Damages for lowering water level
289
Negligent destruction of buildings and contents
292
Injury to building by explosion of dynamite 7242 Personal propertyLoss of
294
Injuries to vehicle
295
Loss of property of guest at hotel 7245 Injury to traction engine by collision 7246 Damages from the death or injury of domestic animals
296
Personal Injuries SS 72707345
297
Further of injuries to vessels
299
Injuries to tow 7252 Loss of time of employés through obstruction of river 7253 Injuries to nets by negligence of vessels
300
Breakdown of county bridge 7255 Damages for injuries by carrier to subject of shipment
301
Damages for delay of carrier
302
Damages to third person by negligence of carrier of goods 7258 Where property has no general market value 7259 Duty to minimize damages
304
Subrogation of insurer 7261 Interest on damages
305
CHAPTER CXCIV
306
Malpractice of physician setting broken arm 7275 Liability of druggist to third person taking poison sold as medicine
310
LOSS OF TIME AND WAGES
317
Amount of such damages difficult of ascertainment
323
Whether impairment of earning capacity must be specially averred
329
STATE OF THE LAW PREVIOUS TO LORD CAMPBELLS ACT SECTION
331
Further of mental anguish 7322 Knowledge of susceptibility to mental anguish not essential to charge wrongdoer 7323 Peril and fright
332
COST OF CURE SECTION 7327 Expenditures incurred for medical attendance a proper element of damages
342
Causal connection between injury and attendance essential 7329 Expenditures for attendance must have been reasonable in amount
343
Aggravation of injury by malpractice 7331 Gratuitous medical and nursing services
344
Special treatment 7333 Necessity of evidence of amount of medical expenses 7334 Expenses of nursing
345
Recovery in actions by married woman
346
Recovery by infant 7337 Pleading such expenses
347
RECOVERY BY THIRD PERSON SECTION 7341 Action by husband for injuries to wife 7342 Recovery may include both loss of service and dimi...
348
Where the action is by wife for injury pending suit for divorce
349
Where the injury is to a minor child 7345 Character of child sometimes may be shown
350
Quantum of Damages 88 73487363
351
Must be assigned as ground for new trial
352
Amount as determined by pleading and estimates of witnesses 7351 Where property is injured
353
Injuries to the person
354
Further of injuries to the personPermanent injuries
355
Further of injuries to the personTemporary injuries
356
Severe injuriesUnconscionable verdicts
357
Quantum of exemplary damages 7357 Allowance of exemplary damages where compensatory damages only are proper 7358 Double damages
358
Statutory double damages
360
TITLE TWENTYNINE
399
IN GENERAL
401
Scope of release
405
Illustrative cases
411
Ratification of release
417
CHAPTER
425
SECTION
426
But not where there is but a mere scintilla of evidence to show neg
431
APPLICATIONS OF THESE DOCTRINES IN VARIOUS Con
437
In cases against municipal corporations
442
A collection of cases in which the negligence of the defendant
447
CHAPTER CXCVIII
454
Right of action against common carrier of goods is presumptively
460
PARTIES DEFENDANT SECTION
463
When husband and wife should be sued jointly and when separately 7430 Liability of independent contractors to third persons
464
Liability of landowners with reference to negligent acts committed on their land 7432 Cases illustrating the liability of the landowner
466
7433 Cases illustrating the nonliability of the landowner
468
Pleadings must state facts and not conclusions of
485
Particularly of averment of negligence
487
Examples of pleadings wanting in particularity
490
Examples of pleadings not open to this objection 7450 Matters necessarily inferred
491
Alternative averments
492
Control as between general and special allegations of negligence
493
Complaint good in part 1454 Matters pertaining strictly to the remedy
494
Forms of actionTrespass and case
495
Forms of actionWhether ex contractu or ex delicto
497
Proximate cause
498
Allegation of duty
500
Separate counts
501
Demurrer 7461 Motion to make more specific
502
Bill of particulars
503
Whether contributory negligence should be negatived 7464 Where contributory negligence is apparent on the face of the com
504
Willful and gross negligence
506
Averment that injury could have been avoided by the use of due care by defendant after discovery of plaintiffs peril 7467 Joinder of causes of action
508
Effect of joinder in caption but not in body of complaint 1
510
Averring one kind of negligence and recovering on anotherVari
514
Allegation of fact of consolidation of corporations after infiction
520
Willful and wanton injuries at railroad crossings
531
PLEADINGS IN ACTIONS AGAINST CARRIERS
537
PLEADINGS IN ACTIONS BETWEEN MASTER
543
Masters knowledge of the existence of the defect
550
Injuries caused by caving in of trench
564
Examples of inconsistent allegations 1 ARTICLE IV PLEADINGS IN ACTIONS AGAINST MUNICIPAL COR PORATIONS SECTION
565
Corporate existence of defendant 7552 Pleading consolidation of cities 7553 Averment that work was done in execution of a corporate power 7554 ...
566
Averment that the highway or bridge was one which the defendant was bound to keep in repair
567
Further of averments as to duty to keep highways in repair 7557 Averring notice of the defect which caused the injury
568
Stating the place of the injury
570
Describing the defect which caused the injury
571
Objects in highway calculated to frighten horses
572
Averring that defect was proximate cause of injury
573
Snow and ice on sidewalks 7563 Failure to aver special injury by maintenance of public nuisance 7564 Injuries caused by defects in bridges
574
Pleading absence of contributory negligence
575
Plaintiffs ignorance of defect need not be averred 7567 Unnecessary allegations in complaint 7568 Allegation of service of claim or notice of intent to
576
Complaint in case of appeal from disallowance of claim by city 7570 Illustrations of sufficient petitions in highway cases
577
Illustrations of insufficient petitions
579
Variance between pleading and proofIllustrations
580
ARTICLE V PLEADINGS IN CASES OF INJURIES FROM DANGEROUS PREMISES SECTION 7577 Action for negligence or for nuisance
581
Right of injured person on premises 7579 Liability of landlord 7580 Want of knowledge of danger by injured person
582
Injuries to children 7582 Places attractive to children
583
Complaint in action against abutting owner for injuries from de fects in sidewalks 7584 Unguarded excavations
584
PLEADINGS IN MISCELLANEOUS CASES OF NEGLIGENCE SECTION 7587 Injuries on highways 7588 Negligence of street railroad companies...
585
CHAPTER CCI
591
Impairment of earning power
595
Pleading contributory negligence
603
Matters of common knowledge need not be proved
608
Further of this doctrine
615
This subject how connected with that of burden of proof
621
Right to rely on presumption not waived by pleading particular
627
Evidentiary facts which have been held to call for the application of this maxim
633
Cases which deny the application of the rule of res ipsa loquitur
635
In case of accidents arising under obscure circumstances
640
PRESUMPTIONS AS TO PARTICULAR Facts
641
Statutory presumptions where circumstances are shown 7656 Failure to produce testimony 7657 Refusal to furnish information when applied
642
Fact that no previous accidents have occurred 7659 Ownership of thing causing the injury
643
Capacity of child to appreciate danger 7661 That public work was authorized 7662 Safety of streets and highways 7663 Failure to construct sidewalk...
644
Objects in highway calculated to attract children 7666 Unattended and runaway horses 7666 Unsafe premises
645
Falling objects generally
646
Fall of electric wires 7669 Fall of elevator 7670 Violation of speed ordinance 7671 Defective railroad crossings
647
Presumption of rightacting in crossing accidents
648
Failure to sound crossing signals 7674 Animals killed or injured on railroad tracks
649
Acquiescence in use of railroad right of way by pedestrians 7676 Unnecessary blowing of locomotive whistle under wagon bridges 1677 Proper con...
650
Fires set out by locomotives
651
Fires set out by traction engines 1680 Injuries to passengers
652
Masters knowledge of dangers of service 7682 Competency and habits of fellow servants
653
Presumption that employé received a copy of rules 1684 Employment of inexperienced motorman 1685 Negligence in the employment of independ...
654
Failure of a bailee to redeliver goods
655
Loss of effects of guest in hotel I ARTICLE IV BURDEN OF PROOF AS TO VARIOUS EVIDENTIARY Facts SECTION 7695 Burden of proof gen...
656
Meaning of term prima facie evidence of negligence
659
Defects in construction of buildings 7702 Unsanitary condition of jail 7703 Unsafe condition of street or highway
660
Fright of horses 7705 Where cattle are killed or injured on railroad track
661
Insufficiency of locomotive bell 7707 Ejection of passengers 7708 Care as to effects in sleeping car 7709 Care in the transportation of goods
662
Care of goods by carrier where warehouseman relation has at tached 7711 That loss of goods resulted from a cause excepted in the bill of lading
664
Carrier must explain unreasonable delay 7713 Authority of station agent to contract for shipment of goods 7714 Care in the transportation of live sto...
665
Validity of valuation placed on consignment 7716 Care in running street cars
666
7717 Street railroad signals at crossings 7718 Burden of proof of authority of servant 7719 Care in the relation of master and servant generally
667
That disobedience of masters orders did not contribute to injury 7721 Fellowservant relation 7722 Competency of child assigned to dangerous machi...
669
Assumption of risk 7726 Statutory provisions for protection of employés 5
670
CHAPTER CCV
671
Res gestæ
672
Res gestæ continuedDeclarations of bystanders 7734 Exclamations and declarations of existing pain
675
Declarations of injured person to physician
676
Statements of physician to patient
677
Dying declarations 7738 Admissions against interest 7739 Admissions and declarations competent for purpose of impeach ment
678
Declarations and admissions of viceprincipal 7741 Admissions of agents and servants
679
Admissions for purpose of compromise
681
CHAPTER CCVI
682
Further of inadmissible opinion evidenceExamples
685
Grounds for admission of expert opinion evidence
686
Opinions admissible where facts incapable of presentation by one other than observer
687
Matters deemed the subject of expert opinion evidence
688
Further of matters deemed the subject of expert testimonyMas ter and servant
689
Competency of experts
690
Nonexpert may testify as to speed of trains
692
Medical experts
693
Hypothetical questions
696
DamagesValues 7758 Questions as to intoxication distance etc relate to facts and not opinions
697
Appearance or health of injured person is a question of fact
698
Opinion as to legal effect of contract 7761 Witness may not state opinion of others 7762 Conclusions of witnesses
699
CHAPTER CCVII
701
Whether employé injured in line of duty 1769 Assumption of risk
702
Knowledge of the existence of defects
703
Promise to repair
703
Rules for the government of employés
705
Abrogation of rules by habitual violation
706
Warning and instructing youthful and inexperienced employés
707
Inability to designate with certainty the defect causing injury 1776 Comparison with methods and conditions of employment elsewhere
709
Evidence to show that safer methods could have been adopted 1778 Other appliances available to employé
711
Evidence of previous accidents from same cause
712
Insufficiency of force
713
Employment and retention of incompetent fellow servants
714
Evidence of competency of foreman
716
Negligence of defendant at other times 7786 Scaffolds and derricks
717
Injury in elevator not intended for use of employés 7788 Flying switchesKicking cars
718
Overhead bridges and other overhanging objects 7790 Various matters of evidence relating to railroad signals
719
Written report of accident to State officials not admissible 7792 Habits of injured person
720
Companies in Other than the Carrier
721
Whether crossing is a public crossing
722
Omission of signals at crossings
723
Whether the plaintiff injured at a railroad crossing exercised due care for his own safety
724
Injuries caused by defects in railway crossings 7803 Injuries to pedestrians while crossing highways obstructed by trains
725
Glare of headlight 7805 Injuries to trespassers on railroad track or premises
726
Injuries to animals on track
727
Frightening animals by methods of operation
728
Fires set out by locomotives
729
Further of fires set out by locomotives 7810 Failure to observe rules may be shown
731
Evidence as to what railroad company was responsible for the wrong 7812 Admissible scientific works on question of stopping trains
732
CHAPTER CCIX
733
Whether injured person stopped looked and listened
734
Distance at which electric car can be heard 7819 Discernibility of objects on track ahead 7820 Custom as to running on particular track of double tra...
735
Relevancy and irrelevancy of evidence in particular cases CHAPTER CCX
737
Injuries received in boarding or alighting from cars
738
Admissibility of rules for government of employés
739
Evidence of condition of track at other places 7831 Condition of roadbed after derailment may be shown 7832 Cost of equipment not relevant 7833 ...
740
Speed of train to show violence of collision 7835 Unsuitableness of place selected for ejection of female passenger 7836 Injuries from insane fellow ...
741
CHAPTER CCXI
742
1 Evidence of official resolutions reports ordinances
743
Various questions of evidence relating to the defect which caused the injury
744
Barricades and lights at excavations 7844 Evidence of the condition of the highway near the time of the accident
745
Condition of the highway at other places
746
Further of apertures defects obstructions etc 17847 Evidence that others had used the highway without accident
748
Doctrine that such evidence is admissible
750
Evidence of subsequent repairs 1851 Other safe route which might have been taken
751
Evidence of the habits of the plaintiffs horse 1853 Evidence to show that other horses were frightened by object in highway
752
Evidence of careful and skillful habits of traveller
753
Evidence for the defendant
755
Negligence may be proved by circumstantial evidence 7864 Privileged communications
758
Negative evidenceWitness did not hear bell whistle etc 7866 Testimony of the plaintiff on former trial 7867 Evidence to show hostile feelings of the ...
762
Records of Weather Bureau 7870 Evidence of conditions before and after accident
764
Evidence of repairs and precautions after the accidentWhen such evidence admissible
766
Evidence of similar accidents or long use without accident
769
Evidence to prove general condition of gas pipe 7874 Experiments and tests
770
Verification of model used for purpose of illustration 7876 Diagrams 7877 Photographs and maps
772
View of locality
774
Compulsory examination of injured person 7880 Exhibition of parts of body amputated or removed
775
Injured person may wear clothes worn at time injury was received 7882 Customs and usages
776
Habits and reputation
777
Habits and character of independent contractor 7885 Youth as reason for failure to call witness 7886 Reason for bringing suit in particular jurisdictio...
779
Malpractice of physicians surgeons dentists and attorneys 7889 Dangerous premises
780
Defects in bridges and approaches
781
Negligence in condition of electric wires and apparatus
782
Injuries by animals
783
Injuries caused by reckless driving
784
CHAPTER CCXIII
785
As to general and special instructions 7900 Instructions as to gross negligence
786
Instructions should be clear and easily understood 7902 Particular words and phrases used in instructions
787
Methods of stating general rules and exceptions 7904 As to repetition of instructions
789
Acting in the face of sudden peril
801
Sufficiency of anchor
808
Object of damages
971
SS 74007405
1394
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Σελίδα 146 - ... in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought...
Σελίδα 124 - Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin...
Σελίδα 570 - The ruling was in form that there was no evidence of negligence to go to the jury...
Σελίδα 546 - General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law...
Σελίδα 583 - When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable 1 48 Am. St. Rep. 146. evidence, in the absence of explanation, by the defendant, that the accident arose from a want of care.

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